| Littleton v Amberland Owners, Inc. |
| 2012 NY Slip Op 02844 [94 AD3d 953] |
| April 17, 2012 |
| Appellate Division, Second Department |
| Karen Littleton, Respondent, v Amberland Owners, Inc.,Defendant/Third-Party Plaintiff-Appellant. McKinney Landscaping Corporation, Third-PartyDefendant-Respondent. (And a Second Third-Party Action.) |
—[*1] Karen Littleton, Peekskill, N.Y., plaintiff-respondent pro se. Leonard Kessler, Slate Hill, N.Y., for third-party defendant-respondent.
In an action to recover damages for personal injuries, the defendant third-party plaintiffappeals from an order of the Supreme Court, Westchester County (O. Bellantoni, J.), datedDecember 9, 2010, which granted the motion of the third-party defendant for summary judgmentdismissing the third-party complaint and denied its cross motion for summary judgmentdismissing the complaint.
Ordered that the order is affirmed, with one bill of costs.
The plaintiff allegedly was injured when she slipped and fell on ice on stairs in the parkinglot of her apartment complex, which was owned by the defendant/third-party plaintiff,Amberland Owners, Inc. (hereinafter Amberland). The plaintiff commenced this action againstAmberland to recover damages for personal injuries, and Amberland subsequently commenced athird-party action against the third-party defendant, McKinney Landscaping Corporation(hereinafter McKinney), its snow removal contractor, for common-law contribution andindemnification.
The Supreme Court properly granted McKinney's motion for summary judgment dismissingthe third-party complaint. McKinney established, prima facie, that it was entitled to judgment asa matter of law dismissing the common-law indemnification claim by demonstrating that theplaintiff's accident was not due solely to its negligent performance or nonperformance of an actsolely within its province (see Schultz vBridgeport & Port Jefferson Steamboat Co., 68 AD3d 970, 972 [2009]). In opposition,Amberland failed to raise a triable issue of fact. Furthermore, in opposition to the prima facieshowing by McKinney that it was entitled to judgment as a matter of law dismissing thecommon-law contribution claim, Amberland failed to demonstrate either that McKinney owedAmberland a duty of care independent of its contractual obligations, or that McKinney owed theplaintiff a duty of care (see Foster vHerbert Slepoy Corp., 76 AD3d 210, 216 [2010]; [*2]Schultz v Bridgeport & Port Jefferson Steamboat Co., 68 AD3dat 972).
The Supreme Court properly denied Amberland's cross motion for summary judgmentdismissing the complaint. "A real property owner or a party in possession or control of realproperty will be held liable for injuries sustained in a slip-and-fall accident involving snow andice on its property only when it created the alleged dangerous condition or had actual orconstructive notice of it" (Cantwell vFox Hill Community Assn., Inc., 87 AD3d 1106 [2011]). Here, Amberland failed toestablish, prima facie, that it did not have actual or constructive notice of the dangerouscondition. Since Amberland failed to meet its initial burden of establishing its prima facieentitlement to judgment as a matter of law, the sufficiency of the plaintiff's opposition papersneed not be considered (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]). Rivera, J.P., Chambers, Roman and Sgroi, JJ., concur.