GARTMANN v. CITY OF N.Y

No issue of fact as to whether defendant snow removal contractor created or exacerbated the alleged dangerous condition that caused plaintiffs fall is raised by the evidence that after the most recent snowfall defendant plowed the parking lot and spread calcium chloride on it ( see Espinal v Melville Snow Contrs., 98 NY2d 136, 141-142). Nor, since the snow removal contract obligated defendant to plow only after the owner asked it to do so, did defendant "entirely absorb [the owner's] duty as a landowner to maintain the premises safely" ( id. at 141; see Fung v Japan Airlines Co., Ltd., 9 NY3d 351, 361). In addition, plaintiff does not allege detrimental reliance on defendant's continued performance of its contractual obligations ( see e.g. Espinal at 140). Thus, the record demonstrates as a matter of law that defendant owed no duty of care to plaintiff and cannot be held liable in tort for her injuries ( see id. at 138).