| Henriquez v Inserra Supermarkets, Inc. |
| 2011 NY Slip Op 08327 [89 AD3d 899] |
| November 15, 2011 |
| Appellate Division, Second Department |
| Minerva Henriquez et al., Appellants, v Inserra Supermarkets,Inc., Doing Business as Shoprite of West Haverstraw, et al., Respondents, et al., Defendant. (And aThird-Party Action.) |
—[*1] Alan R. Lewis, Newburgh, N.Y. (John G. Caufield of counsel), for respondent InserraSupermarkets, Inc. Bruce L. Steinowitz, White Plains, N.Y., for respondent MCM Paving and Excavating,Inc.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by theirbrief, from so much of an order of the Supreme Court, Rockland County (Garvey, J.), dated May 19,2010, as granted the separate motions of the defendant Inserra Supermarkets, Inc., and the defendantMCM Paving & Excavation, Inc., for summary judgment dismissing the complaint insofar as assertedagainst each of them.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
On December 7, 2004, the plaintiff Minerva Henriquez allegedly was injured when she slipped andfell in the parking lot of the West Haverstraw Samsondale Plaza shopping center (hereinafter theshopping center). The property was owned by DPSW Samsondale, LLC (hereinafter the owner). Thearea of the parking lot where the plaintiff fell was a part of the property leased by the defendant InserraSupermarkets, Inc. (hereinafter Inserra). The shopping center was managed by an entity known asParagon Management Group, LLC. The plaintiffs commenced this action one day before the expirationof the applicable statute of limitations (see CPLR 214 [5]), mistakenly naming ParagonManagement Group, Inc., as one of the defendants, instead of Paragon Management Group, LLC(hereinafter Paragon). They attempted to serve Paragon by delivering the summons and complaint, withthe misstated name, to the Secretary of State. The Supreme Court denied a motion by Paragonpursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against it for lack ofpersonal jurisdiction, and granted the plaintiffs' cross motion pursuant to CPLR 306-b for leave toextend their time to serve a summons and complaint upon Paragon with an amended caption correctlynaming that defendant. Upon appeal, this Court reversed the order in its entirety, granted Paragon'smotion to dismiss the complaint insofar as asserted against it for lack of personal jurisdiction, anddenied the plaintiffs' cross motion for leave to extend their time to serve a summons [*2]and complaint upon Paragon, finding, inter alia, that "because [Paragon]was never served with process, the Supreme Court lacked personal jurisdiction over it" (see Henriquez v Inserra Supermarkets, Inc.,68 AD3d 927, 928 [2009]).
While the prior appeal was pending, Paragon had commenced a third-party action against MCMContracting, Inc. (hereinafter MCM Contracting), the company responsible, pursuant to the contract ineffect at the time of the accident, for providing snow removal and salting services at the shoppingcenter. The plaintiffs had named MCM Paving & Excavation, Inc. (hereinafter MCM Paving), in thecomplaint, rather than MCM Contracting. MCM Paving moved for summary judgment dismissing thecomplaint insofar as asserted against it. MCM Paving asserted that there was no cognizable theoryunder which it could be held liable, as there was no showing that it had a contractual relationship withany of the parties and, even if it had, it owed no duty to the injured plaintiff, who was not a party to thecontract. MCM Paving further asserted that there was no evidence that it had ever performed anywork in the area where the accident was alleged to have occurred. Inserra also moved for summaryjudgment dismissing the complaint insofar as asserted against it on the ground that it did not have anyownership or control over the parking lot. In the order appealed from, the Supreme Court, inter alia,granted the motions. We affirm the order insofar as appealed from.
The Supreme Court properly granted Inserra's motion for summary judgment dismissing thecomplaint insofar as asserted against it. Inserra established, prima facie, its entitlement to judgment as amatter of law. In support of its motion for summary judgment, Inserra submitted evidence showing thatthe area where the accident allegedly occurred was part of the shopping center's common parking area,maintenance of which was the responsibility of the landlord and Paragon. In opposition, the plaintiffsfailed to raise a triable issue of fact.
The Supreme Court also properly granted MCM Paving's motion for summary judgment dismissingthe complaint insofar as asserted against it. The plaintiffs do not dispute that MCM Paving was notmentioned as a party to the snow and ice removal contract. They contend, however, that MCM Pavingand MCM Contracting were one and the same entity and, therefore, MCM Paving should beconsidered a party to the written snow and ice removal contract between MCM Contracting andParagon. Even if this were true, MCM Paving was entitled to summary judgment dismissing thecomplaint insofar as asserted against it. The Court of Appeals has held that a contractual obligation,standing alone, generally will not give rise to tort liability in favor of a third party (see Espinal vMelville Snow Contrs., 98 NY2d 136, 138 [2002]). However, the Court identified threeexceptions to the general rule, pursuant to which "a party who enters into a contract to render servicesmay be said to have assumed a duty of care—and thus be potentially liable in tort—tothird persons: (1) where the contracting party, in failing to exercise reasonable care in the performanceof his [or her] duties, launches a force or instrument of harm . . . (2) where the plaintiffdetrimentally relies on the continued performance of the contracting party's duties . . . and(3) where the contracting party has entirely displaced the other party's duty to maintain the premisessafely" (id. at 140 [internal quotation marks and citations omitted]; see Foster v Herbert Slepoy Corp., 76AD3d 210, 213 [2010]; Crosthwaite vAcadia Realty Trust, 62 AD3d 823, 824 [2009]; Georgotas v Laro Maintenance Corp., 55 AD3d 666, 667 [2008]).
Here, MCM Paving demonstrated its prima facie entitlement to judgment as a matter of law(see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ.Med. Ctr., 64 NY2d 851, 853 [1985]) "merely by coming forward with proof that the plaintiff wasnot a party to [the] snow removal contract and that [MCM Paving] therefore owed no duty of care tothe plaintiff" (Foster v Herbert Slepoy Corp., 76 AD3d at 214; see Wheaton v East End Commons Assoc.,LLC, 50 AD3d 675, 677 [2008]; Baratta v Home Depot USA, 303 AD2d 434,434-435 [2003]). Once MCM Paving made its prima facie showing, "the burden shifted to theplaintiff[s] to come forward with evidence sufficient to raise a triable issue of fact as to the applicabilityof one or more of the [above] three . . . exceptions" (Foster v Herbert SlepoyCorp., 76 AD3d at 214; see CPLR 3212 [b]; Zuckerman v City of New York,49 NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065,1067 [1979]). Contrary to the plaintiffs' contentions, they failed to offer evidence sufficient to raise atriable issue of fact regarding any of these exceptions. The terms of the snow and salt removal [*3]contract limited MCM Contracting's snow plowing obligation to snowaccumulations of two inches or more. Where the express terms of the contract provide that acontractor is obligated to plow only when snow accumulation exceeds a certain level, the Court ofAppeals has held that such "contractual undertaking is not the type of 'comprehensive and exclusive'property maintenance obligation" that would entirely displace a landlord's or property manager's duty to"maintain the premises safely" (Espinal v Melville Snow Contrs., 98 NY2d at 141; seePalka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 584 [1994]).
With regard to alleged patching defects in the asphalt, there is no evidence that there was a writtencontract with either MCM Paving or MCM Contracting to provide that service. At most, according tothe deposition testimony of a Paragon employee, there was an arrangement whereby an independentcontractor retained by the shopping center landlord would report to Paragon any defects in the asphalthe observed. Based on that report, a Paragon employee would investigate the defect and, if he or shefound a problem, contact MCM Paving. Such an arrangement is far from the "comprehensive andexclusive agreement" which would "entirely displace[ ] the owner's duty to maintain the premises in asafe condition" (Foster v Herbert Slepoy Corp., 76 AD3d at 214; see Espinal v MelvilleSnow Contrs., 98 NY2d at 141).
Likewise, the plaintiffs submitted no evidence to support their contentions that MCM Paving"negligently create[d] or exacerbate[d] a dangerous condition," and "launched a force or instrument ofharm" (Espinal v Melville Snow Contrs., 98 NY2d at 141-142 [internal quotation marksomitted]) with regard to either snow and ice removal or patching the asphalt. "[B]y merely plowing thesnow, as required by the contract, defendant's actions could not be said 'to have created orexacerbated a dangerous condition' " (Fung vJapan Airlines Co., Ltd., 9 NY3d 351, 361 [2007], quoting Espinal v Melville SnowContrs., 98 NY2d at 142; see Foster v Herbert Slepoy Corp., 76 AD3d at 215). Withregard to the alleged defects in the asphalt, the deposition testimony of Paragon's employee that MCMPaving would be called to perform patching work when necessary is insufficient to raise a triable issueof fact as to whether MCM Paving ever actually repaired the area of the parking lot where the accidentallegedly occurred.
Accordingly, the Supreme Court properly granted the separate motions of Inserra and MCMPaving for summary judgment dismissing the complaint insofar as asserted against each of them. Rivera,J.P., Eng, Belen and Austin, JJ., concur.