| Schultz v Bridgeport & Port Jefferson Steamboat Co. |
| 2009 NY Slip Op 09454 [68 AD3d 970] |
| December 15, 2009 |
| Appellate Division, Second Department |
| Eileen Schultz, Respondent, v Bridgeport & Port JeffersonSteamboat Company, Respondent, and S & S Complete Landscaping Corp.,Appellant. |
—[*1] Siben and Siben LLP, Bay Shore, N.Y. (Alan G. Faber of counsel), for plaintiff-respondent. Lennon, Murphy & Lennon, LLC, New York, N.Y. (Kevin J. Lennon of counsel), fordefendant-respondent.
In a consolidated action to recover damages for personal injuries, the defendant S & SComplete Landscaping Corp. appeals from an order of the Supreme Court, Suffolk County(Costello, J.), dated January 15, 2009, which denied its motion for summary judgmentdismissing the complaint 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.
The plaintiff was injured when she slipped and fell on a patch of ice in the parking lot of aferry terminal operated by the defendant Bridgeport & Port Jefferson Steamboat Company(hereinafter Bridgeport). The plaintiff subsequently commenced an action against Bridgeport,among others, and thereafter commenced a separate action against the defendant S & S CompleteLandscaping Corp. (hereinafter S & S), Bridgeport's snow removal contractor. The two actionswere consolidated, and Bridgeport asserted cross claims against S & S sounding in common-lawnegligence, contribution, and contractual indemnification.
"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 [*2]detrimentally relied on the continuedperformance of the snow removal contractor's duties; or (3) the snow removal contractor hasentirely displaced the owner's duty to maintain the premises safely" (Castro v Maple RunCondominium Assn., 41 AD3d 412, 413 [2007]; see Espinal v Melville Snow Contrs.,98 NY2d 136, 140 [2002]).
The Supreme Court should have granted that branch of the motion of S & S which was forsummary judgment dismissing the complaint insofar as asserted against it. S & S made a primafacie showing that its contract to provide snow removal services was not comprehensive andexclusive (see Lattimore v First Mineola Co., 60 AD3d 639, 642-643 [2009];Linarello v Colin Serv. Sys., Inc., 31 AD3d 396 [2006]). Moreover, S & S made a primafacie showing that the plaintiff did not detrimentally rely on the continued performance of itsalleged contractual duties (see Wheaton v East End Commons Assoc., LLC, 50 AD3d675 [2008]; Castro v Maple Run Condominium Assn., 41 AD3d at 413; Bugiada vIko, 274 AD2d 368, 369 [2000]) and that it did not launch a force or instrument of harmwhich created or exacerbated a hazardous condition (see Murphy v M.B. Real Estate Dev.Corp., 280 AD2d 457 [2001]; Pavlovich v Wade Assoc., 274 AD2d 382 [2000]). Inopposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp.,68 NY2d 320, 324 [1986]).
The Supreme Court also should have granted that branch of the motion of S & S which wasfor summary judgment dismissing the cross claims. S & S established, prima facie, that it wasentitled to judgment as a matter of law dismissing the common-law indemnification claim bydemonstrating that the plaintiff's accident was not due solely to its negligent performance ornonperformance of an act solely within its province (see Roach v AVR Realty Co., LLC,41 AD3d 821, 824 [2007]; Murphy v M.B. Real Estate Dev. Corp., 280 AD2d 457[2001]; Oppenheim v One School St. Professional Corp., 263 AD2d 472, 473 [1999];Keshavarz v Murphy, 242 AD2d 680 [1997]). In opposition, Bridgeport failed to raise atriable issue of fact. Furthermore, in opposition to the prima facie showing by S & S that it wasentitled to summary judgment dismissing the contribution claim, Bridgeport failed todemonstrate either that S & S owed Bridgeport a duty of care independent of its contractualobligations, or that S & S owed the plaintiff a duty of care (see Wheaton v East EndCommons Assoc., 50 AD3d at 678; Roach v AVR Realty Co., LLC., 41 AD3d at824; Baratta v Home Depot USA, 303 AD2d 434, 435 [2003]). The Supreme Court alsoshould have granted that branch of S & S's motion which was for summary judgment dismissingthe contractual indemnification claim, since the agreement between Bridgeport and S & Scontained no express indemnification provisions, and an indemnification clause could not beimplied from the language of that agreement (see generally Hooper Assoc. v AGSComputers, 74 NY2d 487, 491-492 [1989]; Drzewinski v Atlantic Scaffold & LadderCo., 70 NY2d 774, 777 [1987]; Canela v TLH 140 Perry St., LLC, 47 AD3d 743,744 [2008]). Skelos, J.P., Eng, Belen and Austin, JJ., concur.