| Lehman v North Greenwich Landscaping, LLC |
| 2009 NY Slip Op 06807 [65 AD3d 1291] |
| September 29, 2009 |
| Appellate Division, Second Department |
| Myra Lehman, Respondent, v North GreenwichLandscaping, LLC, Appellant, and Horton School Associates,Respondent. |
—[*1] Arthur Paul Condon II, Rye, N.Y., for plaintiff-respondent. Thomas D. Hughes, New York, N.Y. (Richard C. Rubinstein of counsel), fordefendant-respondent.
In an action to recover damages for personal injuries, the defendant North GreenwichLandscaping, LLC, appeals from an order of the Supreme Court, Westchester County (Nicolai,J.), entered March 28, 2008, which denied its motion for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it.
Ordered that the order is reversed, on the law, with one bill of costs, and the appellant'smotion for summary judgment dismissing the complaint and all cross claims insofar as assertedagainst it is granted.
On February 26, 2003 the plaintiff allegedly slipped and fell on a patch of ice in a parking loton property owned by the defendant Horton School Associates (hereinafter Horton). Theplaintiff commenced this action to recover damages for personal injuries against both Horton andNorth Greenwich Landscaping, LLC (hereinafter North Greenwich), which provided snowremoval services to Horton pursuant to an oral agreement. North Greenwich moved for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against it, contendingthat it owed no duty to the plaintiff under its snow removal contract. The Supreme Court deniedthe motion, finding that a triable issue of fact existed as to whether North Greenwich assumed acomprehensive and exclusive maintenance obligation at the property. We reverse.
Generally, a snow removal contractor's contractual obligation, standing alone, will not giverise to tort liability in favor of third parties unless: (1) the snow removal contractor, in failing toexercise reasonable care in the performance of its duties, launched a force or instrument of harm;(2) the plaintiff detrimentally relied on the continued performance of the snow removalcontractor's duties; or (3) the snow removal contractor has entirely displaced the owner's duty tosafely maintain the premises (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140[2002]; Bickelman v Herrill Bowling Corp., 49 AD3d 578, 579 [2008]; Scott vBergstol, 11 AD3d 526, 527 [2004]; Baratta v Home Depot USA, 303 AD2d 434[2003]).[*2]
North Greenwich demonstrated its prima facieentitlement to judgment as a matter of law by establishing that it owed no duty of care to theplaintiff (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In opposition to themotion, no triable issue of fact was raised. Here, the limited contractual undertaking was not acomprehensive and exclusive property maintenance obligation intended to displace thelandowner's duty to safely maintain the property (see Palka v Servicemaster Mgt. Servs.Corp., 83 NY2d 579, 588 [1994]; Castro v Maple Run Condominium Assn., 41AD3d 412, 413 [2007]; Pavlovich v Wade Assoc., 274 AD2d 382, 382-383 [2000]).Rather, it is undisputed that Horton retained some oversight of and participated in the snowremoval process and, accordingly, North Greenwich did not entirely absorb Horton's duty as alandowner to safely maintain the premises (see Espinal v Melville Snow Contrs., 98NY2d at 141; Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d at 584).
Nor is there any evidence that the plaintiff detrimentally relied on North Greenwich'sperformance or that its actions "launched a force or instrument of harm" (Moch Co. vRensselaer Water Co., 247 NY 160, 168 [1928]; see Baratta v Home Depot USA,303 AD2d at 434; Pavlovich v Wade Assoc., 274 AD2d at 383). Therefore, the SupremeCourt should have granted North Greenwich's motion for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it. Rivera, J.P., Eng, Chambers andHall, JJ., concur.