| Schwint v Bank St. Commons, LLC |
| 2010 NY Slip Op 05749 [74 AD3d 1312] |
| June 29, 2010 |
| Appellate Division, Second Department |
| Joan Schwint, Respondent-Appellant, v Bank StreetCommons, LLC, Appellants-Respondents, and Michael Bellantoni, Inc., et al.,Respondents. |
—[*1] Gassler & O'Rourke, P.C., Great Neck, N.Y. (Charles P. Gassler of counsel), forrespondent-appellant. Milber Makris Plousadis & Seiden, LLP, White Plains, N.Y. (Lorin A. Donnelly of counsel),for respondent Michael Bellantoni, Inc.
In an action to recover damages for personal injuries, the defendants Bank Street Commons,LLC, Bank Street Commons Maintenance Association, Inc., and Riverstone Residential NE,LLC, appeal from so much of an order of the Supreme Court, Westchester County (Liebowitz,J.), entered May 5, 2009, as denied their motion for summary judgment dismissing the complaintand all cross claims insofar as asserted against them, and the plaintiff cross-appeals, as limitedby her brief, from so much of the same order as granted that branch of the motion of thedefendant Michael Bellantoni, Inc., which was for summary judgment dismissing the complaintinsofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that the order is reversed insofar as cross-appealed from, on the law, and that branchof the motion of the defendant Michael Bellantoni, Inc., which was for summary judgmentdismissing the complaint insofar as asserted against it is denied; and it is further,
Ordered that one bill of costs is awarded to the plaintiff payable by the defendant MichaelBellantoni, Inc., and the defendants Bank Street Commons, LLC, Bank Street CommonsMaintenance Association, Inc., and Riverstone Residential NE, LLC, appearing separately andfiling separate briefs.
The plaintiff alleged that she was injured when she slipped and fell as she stepped onto anicy mound of snow on the sidewalk in front of the apartment building where she resided. Shethereafter commenced this action against, among others, Bank Street Commons, LLC, BankStreet Commons Maintenance Association, Inc., and Riverstone Residential NE, LLC, the ownerand managing agent of the [*2]apartment building (hereinaftercollectively Bank Street), and Michael Bellantoni, Inc. (hereinafter Bellantoni), which performedsnow-removal services pursuant to a written contract with Bank Street. In a bill of particulars,the plaintiff specifically alleged that Bellantoni affirmatively created the condition on which shefell and that Bellantoni made the condition more dangerous.
Generally, a contractual obligation standing alone will not give rise to tort liability in favorof a third party (see Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]).However, the Court of Appeals has identified three situations wherein the party who enters into acontract to render services may be held liable in tort to a third party: "(1) where the contractingparty, in failing to exercise reasonable care in the performance of his duties, 'launche[s] a forceor instrument of harm'; (2) where the plaintiff detrimentally relies on the continued performanceof the contracting party's duties and (3) where the contracting party has entirely displaced theother party's duty to maintain the premises safely" (id. at 140 [citations omitted], quotingMoch Co. v Rensselaer Water Co., 247 NY 160, 168 [1928]). A defendant whoundertakes to render a service and then "negligently creates or exacerbates a dangerous conditionmay be liable for any resulting injury" (Espinal v Melville Snow Contrs., 98 NY2d at141-142). Here, Bellantoni failed to make a prima facie showing that, among other things, itssnow-removal efforts did not create or exacerbate the allegedly dangerous condition on thesidewalk (see Keese v Imperial Gardens Assoc., LLC, 36 AD3d 666, 668 [2007];Prenderville v International Serv. Sys., Inc., 10 AD3d 334, 336-337 [2004]; cf.Foster v Herbert Slepoy Corp., 74 AD3d 1139 [2d Dept 2010]). Therefore, the SupremeCourt erred in granting that branch of Bellantoni's motion which was for summary judgmentdismissing the complaint insofar as asserted against it (cf. Rina v Windemere Home OwnersAssn., Inc., 66 AD3d 756, 757 [2009]).
Unless a statute or ordinance clearly imposes liability upon an abutting landowner, only amunicipality may be held liable for the negligent failure to remove snow and ice from a publicsidewalk (see Smalley v Bemben 12 NY3d 751, 752 [2009]; Bi Chan Lin v Po YingYam, 62 AD3d 740, 741 [2009]; Martin v City of New York, 59 AD3d 501 [2009]).In the absence of a statute or ordinance imposing liability, the owner or lessee of propertyabutting a public sidewalk will be held liable only where it, or someone on its behalf, undertooksnow and ice removal efforts which made the natural conditions more hazardous (see BiChan Lin v Po Ying Yam, 62 AD3d at 741; Robles v City of New York, 56 AD3d647 [2008]). Here, the sidewalk at issue was owned by the City of White Plains and the City'sordinance did not impose liability on an abutting property owner, such as Bank Street. However,the Supreme Court properly denied Bank Street's motion for summary judgment dismissing thecomplaint and all cross claims insofar as against it because Bank Street failed to establish, primafacie, that the snow-removal efforts performed by it, or on its behalf, did not create or exacerbatethe icy condition which led to the plaintiff's slip and fall (see Robles v City of NewYork, 56 AD3d at 648; Legoff v 34th St. Partnership, 305 AD2d 552 [2003]).
Given the limited scope of Bank Street's notice of appeal, the issues of whether the SupremeCourt erred in denying Bank Street's cross motion for conditional summary judgment on its crossclaims against Bellantoni and in granting that branch of Bellantoni's motion which was forsummary judgment dismissing Bank Street's cross claims insofar as asserted against it are notbefore this Court (see CPLR 5515 [1]; Southwell v Middleton, 67 AD3d 666,670 [2009]). Miller, J.P., Leventhal, Chambers and Lott, JJ., concur.