| Baker v Buckpitt |
| 2012 NY Slip Op 07025 [99 AD3d 1097] |
| October 18, 2012 |
| Appellate Division, Third Department |
| Joanne Baker et al., Respondents, v Gary Buckpitt, Individually andDoing Business as Early Riser, et al., Appellants. |
—[*1] Fischer, Bessette, Muldowney & Hunter, LLP, Malone (Matthew H. McArdle of counsel),for respondents.
Egan Jr., J. Appeal from that part of an order of the Supreme Court (Muller, J.), entered June29, 2011 in Clinton County, which denied defendants' motion for summary judgment dismissingthe complaint against defendant Early Riser I, LLC.
In January 2006, plaintiff Joanne Baker fractured her left ankle when she slipped and fell inthe parking lot of her employer, Wyeth Pharmaceuticals, at its facility in the Town of Chazy,Clinton County. As a result, Baker and her husband, derivatively, commenced this action against,among others, defendant Early Riser I, LLC, which had contracted with Wyeth to provide snowremoval and salting/sanding services at its Chazy plant and another related facility.
Following joinder of issue and discovery, defendants moved for summary judgmentdismissing the complaint. Supreme Court dismissed the complaint as to defendants GaryBuckpitt (a member and manager of Early Riser I, LLC) and Early Riser Limited Partnership (thenow-dissolved predecessor-in-interest to Early Riser I, LLC), but otherwise denied defendants'motion. Defendants now appeal from that part of Supreme Court's order as denied their motionfor summary judgment dismissing the complaint against Early Riser I, LLC (hereinafter [*2]defendant).[FN1]
A finding of negligence must be based upon the breach of a duty; hence, our thresholdinquiry is whether defendant, as the alleged tortfeasor, owed a duty of care to plaintiffs in the firstinstance (see Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]; Luby v Rotterdam Sq., L.P., 47 AD3d1053, 1054 [2008]; Seymour vDavid W. Mapes, Inc., 22 AD3d 1012, 1013 [2005]). Generally speaking, a limitedcontractual agreement to provide snow removal services—standing alone—will notgive rise to tort liability in favor of a noncontracting injured third party (see Lubell v Stonegate at Ardsley HomeOwners Assn., Inc., 79 AD3d 1102, 1103 [2010]; Wheaton v East End Commons Assoc., LLC, 50 AD3d 675, 677[2008]; Castro v Maple RunCondominium Assn., 41 AD3d 412, 413 [2007]; see also Fung v Japan Airlines Co., Ltd., 9 NY3d 351, 361 [2007];Espinal v Melville Snow Contrs., 98 NY2d at 138; Grady v Hoffman, 63 AD3d 1266, 1267 [2009]). The Court ofAppeals has recognized three exceptions to this general rule: "(1) where the contracting party, infailing to exercise reasonable care in the performance of his [or her] duties, launche[s] a force orinstrument of harm; (2) where the plaintiff detrimentally relies on the continued performance ofthe contracting party's duties[;] and (3) where the contracting party has entirely displaced theother party's duty to maintain the premises safely" (Espinal v Melville Snow Contrs., 98NY2d at 140 [internal quotation marks and citations omitted]; see Gibson v Dynaserv Indus., Inc., 88AD3d 1135, 1135 [2011]; Gadani vDormitory Auth. of State of N.Y., 43 AD3d 1218, 1219-1220 [2007]). Althoughplaintiffs assert that two of the foregoing exceptions potentially are applicable here, thuswarranting the denial of summary judgment in favor of defendant, plaintiffs' analysis of theliability issue misses the mark.
"[T]he prima facie showing which a defendant must make on a motion for summaryjudgment is governed by the allegations of liability made by the plaintiff in the pleadings" (Foster v Herbert Slepoy Corp., 76AD3d 210, 214 [2010]). Here, plaintiffs failed to allege—in either their complaint orbill of particulars—facts sufficient to trigger any of the three exceptions identified inEspinal and its progeny.[FN2] Absent such allegations, defendant was not required to affirmatively negate the possibleapplicability of those exceptions in order to discharge its initial burden on the motion forsummary judgment; rather, defendant could demonstrate its prima facie entitlement to judgmentas a matter of law "merely by coming forward with proof that [plaintiffs were] not [parties] to thecontract between . . . defendant[ ] and [Wyeth]" (Gordon v Pitney Bowes Mgt. Servs.,Inc., 94 AD3d 813, 814 [2012]; see Knox v Sodexho Am., LLC, 93 AD3d 642, 642 [2012]; Henriquez v Inserra Supermarkets,Inc., 89 AD3d 899, 901 [2011]; Lubell v Stonegate at Ardsley Home Owners Assn.,Inc., 79 AD3d at 1104; Foster v Herbert Slepoy Corp., 76 AD3d at 214). Asdefendant tendered the underlying contract between it and Wyeth, thus establishing that it owedno duty to plaintiffs, the burden shifted to plaintiffs to come [*3]forward with sufficient proof to raise a question of fact in thisregard. This they failed to do.
Pursuant to the contract between defendant and Wyeth, defendant was required to plow theparking lot only when called to do so by Wyeth's on-duty security supervisor (based upon anaccumulation of three inches or more of snow) and, indeed, both the contract and Buckpitt'suncontradicted examination before trial testimony make clear that defendant did not in fact plow,salt, sand, scrape down or otherwise remove snow, slush or ice from the lot unless expresslydirected to do so by Wyeth personnel. Under these circumstances, it cannot be said that thecontract between defendant and Wyeth was "so comprehensive and exclusive a maintenanceagreement as to entirely displace" Wyeth's duty to maintain the property safely (Kearsey v Vestal Park, LLC, 71 AD3d1363, 1366 [2010] [internal quotation marks and citations omitted]; see Espinal vMelville Snow Contrs., 98 NY2d at 141; Castro v Maple Run Condominium Assn.,41 AD3d at 413; cf. Henriquez v Inserra Supermarkets, Inc., 89 AD3d at 901-902; Parker v Rust Plant Servs., Inc., 9AD3d 671, 673-674 [2004]). Accordingly, plaintiffs failed to raise a question of fact as tothe applicability of this particular exception.
We reach a similar conclusion regarding whether defendant "launched a force or instrumentof harm by creating or exacerbating the . . . condition that allegedly caused [Baker]to fall" (Knox v Sodexho Am., LLC, 93 AD3d at 643). As a starting point, there isnothing in the record to support plaintiffs' otherwise speculative claim that the conditions thatBaker encountered in the parking lot on the morning in question were the result of a defect indefendant's snow removal efforts. Indeed, Baker testified at her examination before trial that,upon arriving at work, the parking lot "looked normal" to her, and she described the buildup ofsnow that she observed after her fall as residual snow that either fell off or had been cleaned offof another vehicle in the lot. Moreover, even if the snow observed by Baker was left over fromdefendant's prior plowing operations, the case law makes clear that "by merely plowing the snowin accordance with the [underlying] contract and leaving some residual snow or ice on theplowed area, [defendant] cannot be said to have created a dangerous condition and therebylaunched a force or instrument of harm" (Foster v Herbert Slepoy Corp., 76 AD3d at 215;see Fung v Japan Airlines Co., Ltd., 9 NY3d at 361; Espinal v Melville SnowContrs., 98 NY2d at 142; Henriquez v Inserra Supermarkets, Inc., 89 AD3d at 902;compare Elsey v Clark TradingCorp., 57 AD3d 1330, 1332 [2008]). Finally, plaintiffs have not alleged—and therecord does not demonstrate—that any snow removal efforts undertaken by defendant,either on the day in question or at some point prior thereto, "left the premises in a moredangerous condition than [it] found them" (Foster v Herbert Slepoy Corp., 76 AD3d at215; see Gibson v Dynaserv Indus., Inc., 88 AD3d at 1136; Gadani v DormitoryAuth. of State of N.Y., 43 AD3d at 1220). Accordingly, the motion for summary judgmentdismissing the complaint should have been granted in its entirety.
Peters, P.J., Rose, Spain and McCarthy, JJ., concur. Ordered that the order is modified, onthe law, with costs to defendants, by reversing so much thereof as partially denied defendants'motion for summary judgment dismissing the complaint; motion granted and complaintdismissed in its entirety; and, as so modified, affirmed.
Footnote 1: Buckpitt testified, and plaintiffsdo not dispute, that Early Riser, LLC is an unrelated business entity that has no connection to thisaction. For that reason, defendants are entitled to summary judgment dismissing the complaintagainst Early Riser, LLC. Accordingly, Early Riser I, LLC is the sole remaining defendant.
Footnote 2: Plaintiffs simply alleged, in aconclusory and unsubstantiated fashion, that defendant created a dangerous condition upon theparking lot in question.