| Conte v Servisair/Globeground |
| 2009 NY Slip Op 05282 [63 AD3d 981] |
| June 23, 2009 |
| Appellate Division, Second Department |
| Joseph Conte et al., Appellants, v Servisair/Globeground,Respondent. (And a Third-Party Action.) |
—[*1] Dombroff Gilmore Jaques & French, P.C., New York, N.Y. (John R. Oh of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Westchester County (Nicolai, J.),entered June 18, 2008, as granted the defendant's renewed motion for summary judgmentdismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
On January 23, 2004, at about 4:55 a.m., while on his way to work, the plaintiff JosephConte (hereinafter the injured plaintiff) allegedly slipped and fell on black ice on an exteriortarmac walkway on premises leased by his employer, Delta Air Lines, Inc. (hereinafter Delta), atLa Guardia Airport. At the time, Delta had a snow removal contract with the defendant. After theinjured plaintiff and his wife commenced this action, and following joinder of issue, but beforedepositions were conducted, the defendant, in April 2006, moved for summary judgmentdismissing the complaint. The Supreme Court denied the motion on the ground, inter alia, thatthere had as yet been no depositions, and that the motion was consequently premature. Followingdepositions, including those of the injured plaintiff, the defendant, and Delta, the defendant madethe instant renewed motion for summary judgment dismissing the complaint, and the SupremeCourt granted it. We affirm.
The defendant's prior motion was denied, in effect, with leave to renew following thecompletion of depositions. Contrary to the plaintiffs' contentions, once those depositions hadtaken place, the Supreme Court properly entertained the defendant's renewed motion forsummary judgment (cf. Williams v City of White Plains, 6 AD3d 609 [2004];Capuano v Platzner Intl. Group, 5 AD3d 620 [2004]), and properly granted it.
Ordinarily, an alleged breach of a contractual obligation is not sufficient in and of itself toimpose tort liability upon the promisor to noncontracting parties (see Church v CallananIndus., 99 NY2d 104 [2002]; Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76NY2d 220 [1990]). The Court of Appeals has recognized three situations in which a party suchas the defendant may be said to have [*2]assumed a duty of care,and thus potentially may be liable in tort to third persons such as the injured plaintiff: (1) wherethe contracting party, in failing to exercise reasonable care in the performance of its duties,launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on thecontinued performance of the contracting party's duties; and (3) where the contracting party hasentirely displaced the other party's duty to maintain the premises safely (see Espinal vMelville Snow Contrs., 98 NY2d 136, 140 [2002]).
The defendant made a prima facie showing that none of the situations in which liability maybe imposed, as described in Espinal, were applicable here (see Fung v Japan AirlinesCo., Ltd., 9 NY3d 351, 361 [2007]; Espinal v Melville Snow Contrs., 98 NY2d at141; Wheaton v East End Commons Assoc., LLC, 50 AD3d 675, 677-678 [2008];Roach v AVR Realty Co., LLC, 41 AD3d 821, 823-824 [2007]; Castro v Maple RunCondominium Assn., 41 AD3d 412, 413-414 [2007]; Linarello v Colin Serv. Sys.,Inc., 31 AD3d 396, 397 [2006]). In opposition, the plaintiffs failed to submit evidencesufficient to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]).
Accordingly, the Supreme Court properly granted the defendant's renewed motion forsummary judgment dismissing the complaint.
In light of the foregoing determination, we need not address the defendant's contention that,under its snow removal contract with Delta, it was not obligated to service the particular area inwhich the injured plaintiff allegedly fell. Prudenti, P.J., Fisher, Miller and Lott, JJ., concur.