| Gibson v Dynaserv Indus., Inc. |
| 2011 NY Slip Op 07340 [88 AD3d 1135] |
| October 20, 2011 |
| Appellate Division, Third Department |
| Carol Gibson, Respondent, v Dynaserv Industries, Inc.,Appellant. |
—[*1] Leonard & Cummings, L.L.P., Binghamton (Hugh B. Leonard of counsel), for appellant. Fine, Olin & Anderman, L.L.P., Newburgh (Kara L. Campbell of counsel), for respondent.
Kavanagh, J. Appeal from an order of the Supreme Court (Rumsey, J.), entered June 16,2010 in Broome County, which denied defendant's motion for summary judgment dismissing thecomplaint.
Plaintiff sued to recover for injuries sustained when, in December 2002, she slipped on ice inthe parking lot of the building where she was employed. Her employer, which leased thebuilding, contracted with defendant to remove ice and snow from the building's driveway andparking lot. Defendant moved for summary judgment dismissing the complaint and SupremeCourt denied the motion, prompting this appeal.
We reverse. It is now well settled that "[a] contractual obligation, even if breached, will onlygive rise to a duty to noncontracting third parties in three, limited situations: (1) where thecontracting party, in failing to exercise reasonable care in the performance of his [or her] 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" (Gadani v Dormitory Auth. of State ofN.Y., 43 AD3d 1218, 1219-1220 [2007] [internal quotation marks and citations [*2]omitted]; see Torosian v Bigsbee Vil. Homeowners Assn., 46 AD3d 1314,1316 [2007]). None of these exceptions applies to the facts presented in this appeal, anddefendant's motion for summary judgment should have been granted.
Here, plaintiff claims that defendant failed to perform its obligations under the contract and,as a result, allowed a condition to exist on the property that caused her to fall and be injured. Insupport of that contention, plaintiff offered the report of a meteorologist who concluded that shefell on ice that had formed in the parking lot after snow from a prior storm had melted and then,with the onset of lower temperatures, froze. Plaintiff claims that if defendant had properlyinspected the premises as required by the contract, it would have discovered the ice prior to herfall, addressed it and, in all likelihood, the accident would not have occurred. More importantly,plaintiff does not claim that defendant created or exacerbated the conditions that existed in theparking lot that caused her to fall (see Gadani v Dormitory Auth. of State of N.Y., 43AD3d at 1220; see also Moch Co. v Rensselaer Water Co., 247 NY 160, 167 [1928]; DiGrazia v Lemmon, 28 AD3d926, 928 [2006], lv denied 7 NY3d 706 [2006]). We also note that plaintiff haspresented no evidence that defendant "left the premises in a more dangerous condition than [it]found them" or, launched a force or instrument of harm that caused her to fall and be injured (Foster v Herbert Slepoy Corp., 76AD3d 210, 215 [2010]; see Church v Callanan Indus., 99 NY2d 104 [2002];Moch Co. v Rensselaer Water Co., 247 NY at 167).
Further, we agree with defendant that the contract was not exclusive and did not "entirelydisplace[ ]" the duty of plaintiff's employer "to maintain the premises safely" (Gadani vDormitory Auth. of State of N.Y., 43 AD3d at 1220; see Kearsey v Vestal Park, LLC, 71 AD3d 1363, 1366 [2010];compare Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 588-589 [1994]). Thecontract specifically stated that it was "a non-exclusive agreement" and that "[plaintiff'semployer] reserve[d] the right to undertake all work on its own behalf or through a third party."Moreover, plaintiff testified that ice melt was available on the premises and that, on occasion, sheand other employees used it as conditions warranted, establishing that her employer retainedsome responsibility regarding maintenance of the premises (see Gadani v Dormitory Auth. ofState of N.Y., 43 AD3d at 1220).
Finally, plaintiff's claim that she relied upon defendant's contractual obligation to performsnow and ice removal on the premises is not supported by the record. Her status regarding theperformance of this contract and the maintenance of the premises is no different and no morespecific than that owed to the community-at-large, and no evidence has been presented either thatplaintiff knew that defendant was responsible for ice and snow removal on the premises or thatshe, in particular, as opposed to the community at large, was an intended beneficiary of theobligations that defendant assumed pursuant to this contract (see Espinal v Melville SnowContrs., 98 NY2d 136, 141 [2002]; Foster v Herbert Slepoy Corp., 76 AD3d at 215).As a result, defendant's motion for summary judgment dismissing the complaint should havebeen granted.
Mercure, J.P., Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that the order isreversed, on the law, with costs, motion granted, summary [*3]judgment awarded to defendant and complaint dismissed.