| Repetto v Alblan Realty Corp. |
| 2012 NY Slip Op 05622 [97 AD3d 735] |
| July 18, 2012 |
| Appellate Division, Second Department |
| Rosemary Repetto et al., Respondents, v Alblan RealtyCorp., Respondent-Appellant, and R&R Roofing Systems, Inc.,Appellant-Respondent. |
—[*1] Joseph C. Tonetti, P.C. (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D.Sweetbaum], of counsel), for respondent-appellant. Corpina, Piergrossi, Klar & Peterman, LLP (Pollack, Pollack, Isaac & De Cicco, New York,N.Y. [Brian J. Isaac and Michael H. Zhu], of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant R&R RoofingSystems, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court,Nassau County (Brown, J.), entered June 16, 2011, as denied its motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it, and the defendantAlblan Realty Corp. cross appeals from so much of the same order as denied its cross motion forsummary judgment dismissing the complaint and all cross claims insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that the order is reversed insofar as cross-appealed from; on the law, and the crossmotion of the defendant Alblan Realty Corp. for summary judgment dismissing the complaintand all cross claims insofar as asserted against it is granted; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs payable by the defendant R&RRoofing Systems, Inc., and one bill of costs is awarded to the defendant Alblan Realty Corp.payable by the plaintiffs.
The defendant Alblan Realty Corp. (hereinafter Alblan) leased certain premises, including abuilding and its adjoining outdoor parking lot, to a nonparty law firm. Under the lease, Alblanretained two parking spaces for its own use. The lease also provided that the tenant wasresponsible for removal of snow and ice. That tenant, in turn, contracted with the defendant R&RRoofing Systems, Inc. (hereinafter R&R), for removal of snow in the parking lot. After a heavysnowfall on December 20, 2009, R&R plowed and salted the parking lot. R&R returned to plowand salt again after a significantly lighter snowfall on December 31, 2009, and again after a lightsnowfall [*2]on January 8, 2010. On January 11, 2010, theinjured plaintiff, an employee of the tenant, allegedly was injured when she slipped and fell onice in the parking lot. She had entered the premises through a gate near a pile of snow created byR&R's plowing operation and slipped on ice which had allegedly been created by melting andrefreezing from that pile of snow.
The injured plaintiff, and her husband suing derivatively, commenced this action againstAlblan and R&R. They argued that Alblan, having reserved two parking spaces and havingoccupied a building next door to the premises, was not an out-of-possession landlord. Theyasserted that R&R was liable because, by piling snow near the gate, it created the dangerouscondition that allegedly caused the accident. The defendants separately moved for summaryjudgment. The Supreme Court denied both motions.
While the general rule is that a contractual obligation will not give rise to tort liability infavor of a third party, there are a number of exceptions to that rule (see e.g. Espinal vMelville Snow Contrs., 98 NY2d 136, 138 [2002]; Palka v Servicemaster Mgt. Servs.Corp., 83 NY2d 579, 588 [1994]; Eaves Brooks Costume Co. v Y.B.H. Realty Corp.,76 NY2d 220, 226 [1990]). As relevant to this action, when a contractor, in the performance ofits contractual obligations, has created or exacerbated a dangerous condition, tort liability mayfollow (see Espinal v Melville Snow Contrs., 98 NY2d at 142-143). The Supreme Courtproperly denied R&R's motion for summary judgment inasmuch as, in response to R&R's primafacie showing of its entitlement to judgment as a matter of law, the plaintiffs submitted evidencedemonstrating the existence of triable issues of fact as to whether R&R negligently performed itssnow plowing and removal obligations and thereby created the dangerous condition thatforeseeably caused her injuries (seeGushin v Whispering Hills Condominium I, 96 AD3d 721 [2d Dept 2012]; Elsey v Clark Trading Corp., 57 AD3d1330, 1332 [2008]; Smith v Countyof Orange, 51 AD3d 1006 [2008]; Torosian v Bigsbee Vil. Homeowners Assn., 46 AD3d 1314, 1316[2007]). Plowing snow into piles may foreseeably result in a dangerous condition because ofmelting and refreezing (see San Marco vVillage/Town of Mount Kisco, 16 NY3d 111, 117 [2010]; Roca v Gerardi, 243AD2d 616, 617 [1997]).
Alblan's summary judgment motion, however, should have been granted. Anout-of-possession landlord is not liable for injuries caused by dangerous conditions on leasedpremises in the absence of a statute imposing liability, a contractual provision placing the duty torepair on the landlord, or by a course of conduct by the landlord giving rise to a duty (see Alnashmi v Certified Analytical Group,Inc., 89 AD3d 10, 18 [2011]). Here, we reject the plaintiffs' contention that, by itsreservation of two parking spaces and its occupancy of a nearby building, Alblan was not anout-of-possession landlord. Moreover, no statute, contractual provision or course of conductplaced the obligation for snow removal on Alblan (id. at 18-19). Consequently, Alblanbreached no duty to the plaintiff, and its motion for summary judgment should have beengranted. Florio, J.P., Balkin, Chambers and Cohen, JJ., concur.