| Gushin v Whispering Hills Condominium I |
| 2012 NY Slip Op 04321 [96 AD3d 721] |
| June 6, 2012 |
| Appellate Division, Second Department |
| Natasha Gushin, Appellant, v Whispering HillsCondominium I et al., Respondents. |
—[*1] MacVean, Lewis, Sherwin & McDermott, P.C., Middletown, N.Y. (Jeffrey D. Sherwin ofcounsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Orange County (Lubell, J.), datedDecember 15, 2010, as granted that branch of the motion of the defendants Whispering HillsCondominium I and Whispering Hills Homeowners Association, Inc., which was for summaryjudgment dismissing the complaint insofar as asserted against them, and granted that branch ofthe separate motion of the defendant Hudson Valley Landscaping M&P, Inc., which was forsummary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the motion of the defendant Hudson Valley Landscaping M&P, Inc., which was forsummary judgment dismissing the complaint insofar as asserted against it, and substitutingtherefor a provision denying that branch of the motion; as so modified, the order is affirmedinsofar as appealed from, without costs or disbursements.
On December 24, 2007, the plaintiff allegedly slipped and fell on ice in the roadway near alandscape circle between the 1900 and 2000 condominium units at Whispering HillsCondominium in Chester. The plaintiff commenced this action against Whispering HillsCondominium I and Whispering Hills Homeowners Association, Inc. (hereinafter togetherWhispering Hills), the alleged owners and managers of the condominium complex, and HudsonValley Landscaping M&P, Inc. (hereinafter Hudson Valley), which had contracted withWhispering Hills to remove snow and ice from the premises.
"A property owner will be held liable for a slip-and-fall accident involving snow and ice onits property only when it created the dangerous condition which caused the accident or had actualor constructive notice thereof" (Robinson v Trade Link Am., 39 AD3d 616, 616-617 [2007]; see Zabbia v Westwood, LLC, 18AD3d 542, 544 [2005]). Here, Whispering Hills satisfied its prima facie [*2]burden of establishing its entitlement to judgment as a matter of lawby demonstrating that it did not create the alleged icy condition, nor have actual or constructivenotice of it (see Torosian v Bigsbee Vil.Homeowners Assn., 46 AD3d 1314, 1315 [2007]; Murphy v 136 N. Blvd.Assoc., 304 AD2d 540 [2003]). In opposition, the plaintiff failed to raise a triable issue offact (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
As a general rule, a limited contractual obligation to provide snow removal services does notrender the contractor liable in tort for the personal injuries of third parties (see Wheaton v East End Commons Assoc.,LLC, 50 AD3d 675, 677 [2008]). However, in Espinal v Melville Snow Contrs.(98 NY2d 136 [2002]), the Court of Appeals identified three situations where a party who entersinto a contract to render services may be said to have assumed a duty of care and thus bepotentially liable in tort to third persons: (1) where the contracting party, in failing to exercisereasonable care in the performance of its duties, launches an instrument of harm or creates orexacerbates a hazardous condition, (2) where the plaintiff detrimentally relies on the continuedperformance of the contracting party's duties, and (3) where the contracting party has entirelydisplaced the other party's duty to maintain the premises safely (id. at 140).
Here, the plaintiff alleged facts in both her complaint and her bill of particulars in support ofher allegation that Hudson Valley created the dangerous condition that caused her to slip and fall.Thus, in support of its motion for summary judgment, Hudson Valley was required to establish,prima facie, that it did not create the alleged dangerous condition (see Foster v Herbert Slepoy Corp., 76AD3d 210, 214 [2010]). Hudson Valley failed to make such a showing. The evidencesubmitted indicated that Hudson Valley piled snow approximately three feet high onto thelandscape circle, which was on an incline above the roadway. Unlike marked lawn areas or fieldsat the condominium, this area, near where condominium residents parked their vehicles, was nota designated area for piling snow. As temperatures fluctuated above and below the freezing point,water ran off the snow pile and into the roadway, where it froze. Hudson Valley, which inspectedthe subject premises on a daily basis, indicated that it was concerned about the freezing ofresultant runoff. Under these circumstances, triable issues of fact exist as to whether the ice onwhich the plaintiff allegedly slipped and fell may have been formed by Hudson Valley's snowremoval efforts (see Elsey v ClarkTrading Corp., 57 AD3d 1330, 1332 [2008]; Smith v County of Orange, 51 AD3d 1006 [2008]; Torosian vBigsbee Vil. Homeowners Assn., 46 AD3d at 1316; Ricca v Ahmad, 40 AD3d 728, 729 [2007]; Keese v Imperial Gardens Assoc.,LLC, 36 AD3d 666, 667-668 [2007]; Vargas v Central Parking Sys., 35 AD3d 255 [2006]).
Accordingly, while the Supreme Court properly granted that branch of the motion ofWhispering Hills which was for summary judgment dismissing the complaint insofar as assertedagainst it, it should have denied that branch of the motion of Hudson Valley which was forsummary judgment dismissing the complaint insofar as asserted against it. Rivera, J.P., Balkin,Belen and Chambers, JJ., concur. [Prior Case History: 2010 NY Slip Op 33547(U).]