| Mazzio v Highland Homeowners Assn. & Condos |
| 2009 NY Slip Op 05301 [63 AD3d 1015] |
| June 23, 2009 |
| Appellate Division, Second Department |
| Anna Mazzio, Appellant, v Highland HomeownersAssociation and Condos et al., Respondents. |
—[*1] Vincent D. McNamara, East Norwich, N.Y. (Donald Mackenzie and Anthony Marino ofcounsel), for respondent Highland Homeowners Association and Condos. Thomas M. Bona, P.C., White Plains, N.Y. (Robert H. Steindorf and Michael Flake ofcounsel), for respondent Works Home Improvement Company, Inc.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Pitts, J.), dated January 28, 2008, which granted the motionof the defendant Highland Homeowners Association and Condos and the separate motion of thedefendant Works Home Improvement Company, Inc., for summary judgment dismissing thecomplaint insofar as asserted against them.
Ordered that the order is reversed, on the law, with one bill of costs, and the defendants'separate motions for summary judgment dismissing the complaint insofar as asserted againstthem are denied.
The plaintiff was injured in the parking lot of a condominium complex owned by thedefendant Highland Homeowners Association and Condos. According to the plaintiff, theaccident occurred while she was attempting to help a physically disabled friend stand up fromthe ground after he allegedly slipped due to the presence of ice. As the plaintiff was assisting herfriend to his feet, he allegedly slipped on ice again, and fell on top of her. It had snowed two orthree times in the week prior to the accident, and snow removal services for the condominiumcomplex were performed by the defendant Works Home Improvement Company, Inc.
After depositions of the parties had been conducted, the defendants separately moved forsummary judgment dismissing the complaint insofar as asserted against them, primarilycontending that the alleged icy condition in the parking lot was not a proximate cause of theplaintiff's injuries and, in any event, that the plaintiff's act of attempting to help her disabledfriend stand up without waiting for assistance was an unforeseeable superseding cause whichsevered any causal connection. Both defendants also claimed, inter alia, that there was no ice orsnow in the area where the plaintiff and her friend fell. The Supreme Court granted thedefendants' motions for summary judgment on the ground that they had established, as [*2]a matter of law, that no dangerous condition existed on thepremises where the accident occurred. We reverse.
Contrary to the Supreme Court's determination, the defendants failed to make a prima facieshowing of their entitlement to summary judgment on the ground that no dangerous conditionexisted. In support of their respective motions, the defendants submitted the deposition testimonyof a member of the condominium's Board of Directors, and the snow removal contractor'spresident, who both maintained that there was no snow or ice in the area where the accidentoccurred. However, the defendants also submitted the deposition testimony of the plaintiff, whotestified that there were patches of ice in that area. In view of this conflicting evidence, thedefendants failed to sustain their burden of demonstrating the absence of any material issue offact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851, 853 [1985]; Khamis v CG Foods, Inc., 49 AD3d 606[2008]).
Furthermore, the defendants were not entitled to summary judgment on the alternativeground that their alleged negligence was not a proximate cause of the accident. Since "thedetermination of legal causation turns upon questions of foreseeability and 'what is foreseeableand what is normal may be the subject of varying inferences, as is the question of negligenceitself, these issues generally are for the fact finder to resolve' " (Kriz v Schum, 75 NY2d25, 34 [1989], quoting Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]). Here,the defendants failed to establish, as a matter of law, that the alleged icy condition in the parkinglot was not a proximate cause of the accident, or that the plaintiff's actions were unforeseeable orof such a character as to constitute a superseding cause absolving them from potential liability(see Derdiarian v Felix Contr. Corp., 51 NY2d 308 [1980]; Mooney v Petro, Inc.,51 AD3d 746, 747 [2008]; Soomaroo v Mainco El. & Elec. Corp., 41 AD3d 465[2007]; Bingham v Louco Realty, LLC, 36 AD3d 845, 846 [2007]; Mercedes vMenella, 34 AD3d 655, 656 [2006]).
The defendant property owner also failed to make a prima facie showing affirmativelyestablishing the absence of notice of the alleged dangerous condition as a matter of law (seeTaylor v Rochdale Vil., Inc., 60 AD3d 930 [2009]; Totten v Cumberland Farms, Inc.,57 AD3d 653, 654 [2008]).
The defendant snow removal contractor did not move for summary judgment based on thegeneral rule that a limited contractual undertaking to provide snow removal services does notgive rise to a duty of care to persons who are not parties to the contract. The snow removalcontractor thus failed to establish that none of the recognized exceptions to this rule exist(see Church v Callanan Indus., 99 NY2d 104, 111 [2002]; Espinal v Melville SnowContrs., 98 NY2d 136, 139-140 [2002]). Prudenti, P.J., Miller, Eng and Belen, JJ., concur.