| Meyers-Kraft v Keem |
| 2009 NY Slip Op 05441 [64 AD3d 1172] |
| July 2, 2009 |
| Appellate Division, Fourth Department |
| Michelle Meyers-Kraft, Respondent, v Patrick J. Keem et al.,Appellants. Patrick J. Keem, Third-Party Plaintiff-Appellant, v John E. Weisberg,Third-Party Defendant-Respondent. |
—[*1] Kenney Shelton Liptak Nowak LLP, Buffalo (Melissa A. Foti of counsel), fordefendant-appellant Brian C. Masterson, doing business as Innovative Landscapes. Law Offices of Kenneth P. Bernas, PLLC, West Seneca (Kenneth P. Bernas of counsel), forplaintiff-respondent. Law Offices of Lawrence M. Rubin, Buffalo (Lawrence M. Rubin of counsel), forthird-party defendant-respondent.
Appeals from an order of the Supreme Court, Erie County (Gerald J. Whalen, J.), enteredSeptember 25, 2008 in a personal injury action. The order, insofar as appealed from, denied themotions of defendants for summary judgment and denied the cross motion of third-party plaintifffor summary judgment.
It is hereby ordered that the order so appealed from is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries that shesustained when she slipped and fell during the winter of 2006 on property leased to third-partydefendant, who operated a chiropractic office on the property. Defendant/third-party plaintiff,Patrick J. Keem, the owner of the property, had entered into a contract with defendant Brian C.Masterson, doing business as Innovative Landscapes, to plow the parking lot and driveway [*2]located on the property.
Supreme Court properly denied the motion of Keem for summary judgment dismissing thecomplaint against him as well as his cross motion for summary judgment on the third-partycomplaint. There is an issue of fact on the record before us concerning the precise location whereplaintiff fell. The location of plaintiff's fall is critical because third-party defendant wasresponsible only for clearing the walkways of snow and ice, while Masterson was charged withplowing the parking lot and driveway of the subject premises. In any event, regardless of thelocation where plaintiff fell, we note that Keem was an out-of-possession landlord who reservedthe right to enter the premises at any time under the terms of the lease, thereby retaining controlsufficient to form a basis for liability against him (see Pastor v R.A.K. Tennis Corp., 278AD2d 395 [2000]; Young v Moran Props., 259 AD2d 1037 [1999]).
We further conclude that the court properly denied the motion of Masterson for summaryjudgment dismissing the complaint and cross claim against him. There are three exceptions to thegeneral rule that a party to a contract is not liable in tort to third persons (see Espinal vMelville Snow Contrs., 98 NY2d 136, 140 [2002]), and there is an issue of fact whether thefirst of the three exceptions applies here, "i.e., where the contracting party fails to exercisereasonable care in the performance of his or her duties and thereby launches a force orinstrument of harm" (Anderson vJefferson-Utica Group, Inc., 26 AD3d 760, 761 [2006]). Although Masterson contendsthat he did not plow on the afternoon of the accident, third-party defendant testified at hisdeposition that he believed that, after he had cleared the walkway, Masterson created adangerous condition on the property by pushing snow onto the walkway at some point during theafternoon of plaintiff's fall. The deposition testimony of third-party defendant was based on hisobservation that the snow was spread out across the sidewalk when he inspected the sidewalkthat evening, and that uncontroverted deposition testimony in fact constitutes circumstantialevidence supporting the position of Keem. In addition, third-party defendant testified that he hadcomplained to Keem about that condition on prior occasions, because Masterson's snowplowwould often push snow into the area through which the patients of third-party defendant enteredthe building. We thus conclude on the record before us that there is an issue of fact whetherMasterson, based on his snowplowing methods, created a hazardous condition on the property bypushing snow across the area where plaintiff fell (see Torosian v Bigsbee Vil. Homeowners Assn., 46 AD3d 1314,1316 [2007]).
All concur except Smith and Carni, JJ., who dissent in part and vote to modify in accordancewith the following memorandum.
Smith and Carni, JJ. (dissenting in part). We respectfully dissent in part and would modifythe order by granting the motion of defendant Brian C. Masterson, doing business as InnovativeLandscapes, for summary judgment and dismissing the complaint and cross claim against him.We agree with the majority's implicit conclusion that Masterson met his initial burden ofestablishing that he did not create the dangerous condition by establishing that he did not plowthe parking lot after third-party defendant cleared snow and ice from the area where plaintifftestified that she fell. We respectfully disagree, however, with the majority's further conclusionthat the parties opposing the motion raised a triable issue of fact to defeat it.
It is beyond cavil that, after the moving party meets his or her burden on a summaryjudgment motion, "the burden shifts to the party opposing the motion for summary judgment toproduce evidentiary proof in admissible form sufficient to establish the existence of materialissues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d320, 324 [1986]; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980];Harris v Town of Mendon, 284 AD2d 988, 989 [2001]). Here, the parties opposing themotion relied solely upon the speculative deposition testimony of third-party defendant thatMasterson plowed the parking lot and deposited snow on the sidewalk in the area where plaintifffell. Third-party defendant admitted in his deposition [*3]testimony that he did not see anyone plow the parking lot on theafternoon in question, and he agreed that he was "assuming that [the lot had been plowed]because of the way the snow was pushed across the walkway." When asked whether at any timeduring the winter in question he had seen a plow push snow onto the area where plaintiffallegedly fell, he testified that he "never saw it." He further admitted that his assumption wasbased on his observation of the conditions in the relevant part of the parking lot on otheroccasions, and that he was "assuming by the way the snow was laid there" that Masterson hadpushed snow there on those occasions. Inasmuch as third-party defendant provided no factualbasis for his conclusion that the snow was deposited by Masterson, and he in fact admitted thathis conclusion was based on an assumption, it cannot be disputed that his opinion is merespeculation that is insufficient to raise a triable issue of fact (see Bellassai v Roberts Wesleyan Coll., 59 AD3d 1125 [2009]; Raux v City of Utica, 59 AD3d984 [2009]; Anthony v WegmansFood Mkts., Inc., 11 AD3d 953 [2004]). Present—Martoche, J.P., Smith, Fahey,Carni and Green, JJ.