Bryan v. CLK-Hp 225 Rabro, LLC

Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola, N.Y. (Edward J. Nitkewicz of counsel), for plaintiff-respondent.

Litchfield Cavo, LLP, New York, N.Y. (Edward M. Fogarty, Jr., of counsel), for defendant-respondent.

Opinion

In an action to recover damages for personal injuries, the defendant Brickman Group Ltd., LLC, appeals from so much of an order of the Supreme Court, Suffolk County (Molia, J.), dated July 31, 2014, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs, and the motion of the defendant Brickman Group Ltd., LLC, for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted.

The plaintiff allegedly sustained personal injuries when she slipped and fell on ice in the parking lot of premises owned by the defendant CLK–HP 225 Rabro, LLC (hereinafter the owner). Thereafter, the plaintiff commenced this action against the owner and the defendant Brickman Group Ltd., LLC (hereinafter Brickman), which provided snow removal services at the premises. The owner asserted cross claims against Brickman seeking contribution, and common-law and contractual indemnification. Brickman moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and the Supreme Court denied the motion.

A contractual obligation, standing alone, generally will not give rise to tort liability in favor of a third party (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485). However, there are three exceptions to that general rule: “(1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties, and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely” (id. at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [internal quotation marks and citation omitted]; see Foster v. Herbert Slepoy Corp., 76 A.D.3d 210, 213, 905 N.Y.S.2d 226).

Brickman made a prima facie showing of its entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by submitting evidence that the plaintiff was not a party to its snow removal agreement, and

that it thus owed her no duty of care (see Diaz v. Port Auth. of N.Y. & NJ, 120 A.D.3d 611, 612, 990 N.Y.S.2d 882; Javid v. Sclafmore Constr., 117 A.D.3d 907, 985 N.Y.S.2d 893). Inasmuch as the plaintiff did not allege facts in the complaint or bill of particulars that would establish the possible applicability of any of the Espinal exceptions (see Espinal v. Melville Snow Contrs., 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485), Brickman was not required to affirmatively demonstrate that these exceptions did not apply in order to establish its prima facie entitlement to judgment as a matter of law (see Diaz v. Port Auth. of N.Y. & NJ, 120 A.D.3d at 612, 990 N.Y.S.2d 882; Javid v. Sclafmore Constr., 117 A.D.3d at 907–908, 985 N.Y.S.2d 893).

Once Brickman made its prima facie showing, the burden shifted to the plaintiff to come forward with proof sufficient to raise a triable issue of fact as to the applicability of one or more of the Espinal exceptions (see Foster v. Herbert Slepoy Corp., 76 A.D.3d at 214, 905 N.Y.S.2d 226). In opposition to Brickman's prima facie showing, the plaintiff failed to raise a triable issue of fact as to whether Brickman launched a force or instrument of harm, whether she detrimentally relied on the continued performance of Brickman's duties, or whether Brickman entirely displaced the owner's duty to maintain the premises in a safe condition (see id. at 214–215, 905 N.Y.S.2d 226; Linarello v. Colin Serv. Sys., Inc., 31 A.D.3d 396, 817 N.Y.S.2d 660). Accordingly, the Supreme Court should have granted that branch of Brickman's motion which was for summary judgment dismissing the complaint insofar as asserted against it.

In addition, the Supreme Court should have granted that branch of Brickman's motion which was for summary judgment dismissing the cross claims asserted against it. Brickman

established, prima facie, that it was entitled to judgment as a matter of law dismissing the cross claim seeking common-law indemnification by demonstrating that the owner's liability, if any, would be based on the owner's actual wrong doing and not on vicarious liability for the Brickman's conduct (see United States Fire Ins. Co. v. Raja, 121 A.D.3d 970, 972, 996 N.Y.S.2d 286). In opposition, the owner failed to raise a triable issue of fact. Furthermore, in opposition to the prima facie showing by Brickman that it was entitled to judgment as a matter of law dismissing the cross claims seeking contribution, the owner failed to demonstrate that Brickman owed a duty of reasonable care to the plaintiff or a duty of reasonable care independent of its contractual obligations to the owner (see Davis v. Catsimatidis, 129 A.D.3d 766, 768, 12 N.Y.S.3d 141; Foster v. Herbert Slepoy Corp., 76 A.D.3d at 216, 905 N.Y.S.2d 226; Baratta v. Home Depot USA, 303 A.D.2d 434, 435, 756 N.Y.S.2d 605). Finally, in opposition to the prima facie showing by Brickman that it was entitled to judgment as a matter of law dismissing the cross claim seeking contractual indemnification, the owner failed to raise a triable issue of fact as to whether Brickman breached the snow removal contract by failing to perform one or more of the services for which it was retained (see Abramowitz v. Home Depot USA, Inc., 79 A.D.3d 675, 677, 912 N.Y.S.2d 639).