| Rubistello v Bartolini Landscaping, Inc. |
| 2011 NY Slip Op 06483 [87 AD3d 1003] |
| September 13, 2011 |
| Appellate Division, Second Department |
| Karen Rubistello, Respondent, v Bartolini Landscaping,Inc., Appellant. |
—[*1] Michael R. Scolnick, P.C., Airmont, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Westchester County (Smith, J.), entered September 2, 2010, which denied itsmotion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On the morning of April 8, 2003, the plaintiff arrived at Philips Research North America(hereinafter Philips), located on Scarborough Road in Briarcliff Manor, where she worked. Theplaintiff parked her car and observed that the parking lot was covered in ice. She exited her car,took approximately four steps, and allegedly slipped and fell, sustaining injuries. The plaintiffcommenced this action against the defendant, the landscaping company which had agreed toperform snow removal services at the subject location. Pursuant to its agreement with Philips, thedefendant would come to the subject location to perform snow removal services only whennotified by a Philips security guard that such services were requested. The defendant moved forsummary judgment dismissing the complaint, asserting that its agreement with Philips was notcomprehensive and exclusive, but rather, Philips retained the duty to maintain the property inreasonably safe condition, as demonstrated by its obligation to request snow removal servicesfrom the defendant when desired. The defendant further asserted that it did not launch a force orinstrument of harm as a result of a failure to exercise reasonable care in the performance of itsduties. In this regard, the defendant asserted that it did not, in fact, perform snow removalservices on the date in question. Moreover, the defendant asserted that, even if it did, there wasno evidence to support the conclusion that it failed to exercise reasonable care in doing so, so thatit could not have launched a force or instrument of harm. The Supreme Court denied thedefendant's motion. We affirm.
"In Espinal v Melville Snow Contrs. (98 NY2d 136, 138 [2002]), the Court ofAppeals held that 'a contractual obligation, standing alone, will generally not give rise to tortliability in favor of a third party' " (Foster v Herbert Slepoy Corp., 76 AD3d 210, 213 [2010], quotingEspinal v Melville Snow Contrs., 98 NY2d at 138). "However, the Court identified threeexceptions to the general rule, pursuant to which 'a party who enters into a contract to renderservices may be said to [*2]have assumed a duty ofcare—and thus be potentially liable in tort—to third persons: (1) where thecontracting party, in failing to exercise reasonable care in the performance of his duties,launche[s] a force or instrument of harm; (2) where the plaintiff detrimentally relies on thecontinued performance of the contracting party's duties and (3) where the contracting party hasentirely displaced the other party's duty to maintain the premises safely' " (Foster v HerbertSlepoy Corp., 76 AD3d at 213, quoting Espinal v Melville Snow Contrs., 98 NY2dat 140; see Church v Callanan Indus., 99 NY2d 104, 111-112 [2002]; Folkl v McCarey Landscaping, Inc., 66AD3d 825, 825 [2009]; Crosthwaitev Acadia Realty Trust, 62 AD3d 823, 824 [2009]).
Here, the Supreme Court properly denied the defendant's motion for summary judgmentdismissing the complaint. Viewed in the light most favorable to the plaintiff (see Pearson v Dix McBride, LLC, 63AD3d 895 [2009]), the pleadings asserted, among other things, that the defendant failed toexercise reasonable care in the performance of its duties, thereby launching a force or instrumentof harm, and that the defendant entirely displaced Philips' duty to maintain the parking lot inreasonably safe condition. Because the pleadings contained allegations which would establishthat these Espinal exceptions applied, to establish its prima facie entitlement to summaryjudgment, the defendant was required to eliminate all triable issues of fact with regard thereto(see generally Foster v Herbert Slepoy Corp., 76 AD3d at 214).
The defendant succeeded in eliminating all triable issues of fact as to whether, by operationof its agreement with Philips, it entirely displaced Philips' duty to maintain the parking lot inreasonably safe condition. In opposition, the plaintiff failed to raise a triable issue of fact withregard to this issue.
The defendant failed to satisfy its initial burden of demonstrating that it did not launch aforce or instrument of harm as a result of a failure to exercise reasonable care in the performanceof snow removal duties. Again, the defendant's position is that it did not perform snow removalservices on the date in question. However, a triable issue of fact remains as to whether thedefendant performed snow removal at Philips' parking lot on the dates in question. The defendantfurther argues that, even assuming it did perform snow removal services, there is no evidencethat it failed to exercise reasonable care in doing so or that it launched a force or instrument ofharm. The defendant, however, came forward with no evidence whatsoever concerning theperformance of snow removal services. On its motion for summary judgment, the defendant borethe burden of " 'affirmatively demonstrat[ing] the merit of its claim or defense' " (Doe v Orange-Ulster Bd. of Coop. Educ.Servs., 4 AD3d 387, 389 [2004], quoting George Larkin Trucking Co. v Lisbon TireMart, 185 AD2d 614, 615 [1992]) that it did not launch a force or instrument of harm as aresult of a failure to exercise reasonable care in the performance of snow removal services. Thedefendant could not satisfy its burden by pointing to gaps in the plaintiff's proof (see Doe vOrange-Ulster Bd. of Coop. Educ. Servs., 4 AD3d at 388-389; George Larkin TruckingCo. v Lisbon Tire Mart, 185 AD2d at 615). Having failed to come forward with evidence tonegate this Espinal exception, the defendant failed to establish its prima facie entitlementto judgment as a matter of law on this issue, and the Supreme Court properly denied its motion.
The defendant's remaining contention is improperly raised for the first time on appeal and,accordingly, is not properly before this Court. Angiolillo, J.P., Dickerson, Hall and Roman, JJ.,concur.