| Falchook v J & M Kingsley, Ltd. |
| 2009 NY Slip Op 07978 [67 AD3d 632] |
| November 4, 2009 |
| Appellate Division, Second Department |
| Leslie Falchook et al., Respondents, v J & M Kingsley,Ltd., Doing Business as Lila's Santa Fe Kitchen, Defendant, and 345 Main Street Associates,LLC, et al., Appellants. (And a Third-Party Action.) |
—[*1] Joseph Soffer, New York, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the defendants 345 Main StreetAssociates, LLC, 345 Main Street Associates, and Palmer Sealy III appeal, as limited by theirbrief, from so much of an order of the Supreme Court, Nassau County (Feinman, J.), datedJanuary 14, 2009, as denied their motion for summary judgment dismissing the amendedcomplaint insofar as asserted against them.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the appellants' motion which was for summary judgment dismissing the amendedcomplaint insofar as asserted against the defendant Palmer Sealy III, and substituting therefor aprovision granting that branch of the motion; as so modified, the order is affirmed insofar asappealed from, without costs or disbursements.
The plaintiffs Leslie Falchook and Judy Falchook and their two children had dinner at thedefendant J & M Kingsley, Ltd., doing business as Lila's Santa Fe Kitchen (hereinafter therestaurant), at around 6:00 p.m. on February 17, 2007. Upon leaving the eestaurant, LeslieFalchook allegedly slipped on a patch of ice on the sidewalk, sustaining injuries. The premiseswere owned by the defendant 345 Main Street Associates, LLC, sued herein as 345 Main StreetAssociates, LLC, and 345 Main Street Associates (hereinafter Associates), and were leased bythe restaurant. The lease required the restaurant to clear all the snow and ice on the premises.Associates employed the defendant Palmer Sealy III as its managing agent in an independentcontractor capacity. Sealy, who had no written contract, testified at his deposition that it hadnever been his duty to remove snow and ice from the premises, and that he had never done so. Areport from the National Climatic Data Center indicated that snow and freezing rain fell onFebruary 13th and 14th, but no additional [*2]precipitation fellbetween the 14th and the 17th.
The plaintiffs commenced this action against the restaurant, Associates, and Sealy on May29, 2007 alleging negligence. The appellants moved for summary judgment dismissing theamended complaint. The Supreme Court denied the motion, finding the existence of issues offact as to whether the defendants had notice of the icy condition and were negligent in theirefforts to keep the sidewalk free from snow and ice.
The Supreme Court erred in denying that branch of the appellants' motion which was forsummary judgment dismissing the amended complaint insofar as asserted against Sealy.Although a contractual obligation alone generally does not create a duty of care toward a thirdparty (see Church v Callanan Indus., 99 NY2d 104, 111 [2002]), the Court of Appeals, inEspinal v Melville Snow Contrs. (98 NY2d 136, 140 [2002] [citations omitted]),described three circumstances in which a contracting party assumes a duty to persons outside thecontract. These are: "(1) where the contracting party, in failing to exercise reasonable care in theperformance of his duties, 'launche[s] a force or instrument of harm'; (2) where the plaintiffdetrimentally relies on the continued performance of the contracting party's duties and (3) wherethe contracting party has entirely displaced the other party's duty to maintain the premisessafely." After the appellants established, prima facie, Sealy's entitlement to judgment as a matterof law, the plaintiffs failed to raise any issue of fact as to whether Sealy is liable to them underany of these three theories (see also Raynor-Brown v Garden City Plaza Assoc., 305AD2d 572 [2003]; cf. Peters vTrammell Crow Co., 47 AD3d 419, 420 [2008]).
However, the Supreme Court properly denied that branch of the appellants' motion whichwas for summary judgment dismissing the amended complaint insofar as asserted againstAssociates. "Generally, liability for injuries sustained as a result of negligent maintenance of orthe existence of dangerous and defective conditions to public sidewalks is placed on themunicipality and not the abutting landowner . . . [but] [l]iability to abuttinglandowners will generally be imposed . . . where a local ordinance or statutespecifically charges an abutting landowner with a duty to maintain and repair the sidewalks andimposes liability for injuries resulting from the breach of that duty" (Hausser v Giunta,88 NY2d 449, 452-453 [1996]). Here, Code of Town of Huntington § 173-16 requiresproperty owners to remove snow and ice from sidewalks within four hours of the cessation ofsnowfall. Associates failed to demonstrate, prima facie, that it complied with this provision(see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Fisher, J.P.,Angiolillo, Dickerson and Roman, JJ., concur.