Schultz v The Bridgeport & Port Jefferson Steamboat Co.

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Schultz v The Bridgeport & Port Jefferson Steamboat Co. 2009 NY Slip Op 33313(U) January 15, 2009 Sup Ct, Suffolk County Docket Number: 04-11953 Judge: Ralph F. Costello Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] . . INDEX NO. SHORT FORM ORDER 04 - 19953 SUF REMECOURT - STATE OF NEW YORK 1A.S. PART 27 - SUFFOLKCOUNTY P R E S E N IF: Hon. RALPH F. COSTELLO Justice of the Supreme Court MOTION DATE 8-5-08 ADJ. DATE 11-6-08 Mot. Seq. #04 - MD _______________-____.----.--------------------------------------- SIBEN & X SIBEN, LLP Attorneys for Plaintiff 90 East Main Street Bay Shore, New York 11706 EILEEN S(3HULJT2,, Plaintiff, TISDALE & LENNON, LLC Attorneys for Defendant The Bridgeport & Port Jefferson Steamboat Company 11 W. 42ndStreet, Suite 900 New York, New York 10036 - against THE BRIDGEPORT & PORT JEFFERSON STEAMBOAT COMPANY and S & S COMPLETE LAIVDSCAPING COW., Defendants. : O CONNOR, O CONNOR, HINTZ, et al. Attorneys for Deft S&S Complete Landsca.ping One Huntington Quadrangle, Suite 3CO 1 Melville, New York 11747-44 15 Upon the following papers numbered 1 to 30 read on this motion for summary judgment ;Notice ofMotionl Order ; Answering Affidavits and to Show Cause and siipporting papers 1 - 22 ;Notice of Cross Motion and supporting papers ; -in supporting papers 23 - 28 ;Replying Affidavits and supporting papers 29 - 30 ; Other - - ( -Pew T =+ ) it is$, ORDERED that this moiion by defendant S & S Complete Landscaping Corp. for summary judgment dismissing the complaint and all cross claims against it is denied. This is an action to recover damages for injuries allegedly sustained by plaintiff, Eileen Schultz, on January 16,2004 at approximately 12:OO p.m. when she slipped and fell in a parking lot at the Port Jefferson Ferry in Port Jefferson, New York, owned by defendant The Bridgeport & Port Jefferson Steamboat Co. ( Steamboat ). Prior to the accident, Steamboat entered into a snow removal contract with defendant S & S Complete Landscaping Corp. ( S & S Landscaping ). Plaintiff alleges in her verified co rnplaint that defendants were negligent in failing to properly maintain, manage and control the premises. creating a hazardous condition which caused her to fall and sustain permanent serious physical injury. S &; S Landscaping now moves for summaryjudgment dismissing the complaint and all cross claims against it on the ground that it neither owed a duty of care to plaintiff stemming from its service [* 2] Schultz v E3ridgeport Index No, 04-19953 Page No. 2 contract uith Steamboat nor created a dangerous icy condition which caused plaintiff to slip and fall. S & S Landscaping alleges that the accident site was not within the scope of its contractual responsibilities. In support, S &. S Landscaping submits, inter alia, the pleadings, the testimony given by plaintiff at the General Municipal Law 3 50-h hearing, the deposition testimony given by plaintiff on November 29, 2006, James McGuire, Steamboat s representative, Donald Fromm, Steamboat s representative, Joselph Carney, Steamboat s representative and Robert Puckey, S & S Landscaping s representative as well as the contract between Steamboat and S & S Landscaping. At ithe General Municipal Law 0 50-h hearing, plaintiff testified to the effect that, on January 16, 2004 at approximately 12:OO p.rn., she was dropping her grandson off at the Port Jefferson Ferry. She parked her car in the parking lot, and she and her grandson walked toward the ferry. After plaintiff kissed her ;grands,ongoodbye on his departure, she walked toward the walkway. Two or three feet thereafter, she slipped and fell in the parking lot. At the time of her fall, plaintiff was looking straight ahead. Bel ore the accident, she observed piles of snow to her left and at the end of the walkway of her path, althcliigh she did not see anything on the ground in front of her. After the accident, plaintiff found a thin coat of ice in a rectangular shape, approximately 24 inches wide and 12 inches long. At her examination before trial on November 29,2006, plaintiff testified to the effect that, on the day of the accident, she fell in the blacktop parking lot which was separated from the walkway by a curb, and her upper body came to rest on the walkway. After her fall, she observed a whitish gray ice patch. At her deposition on February 25,2008, plaintiff testified to the effect that, at the time of the accident, she was approximately a foot away from the curb of the walkway that she was walking toward. Plaintiff testified that there was no sand or salt visible on the ground in the area where she fdl. At his deposition, James McGuire testified to the effect that he is the assistant port captain employed by Steamboat and that he was neither on duty on the day of the accident nor witnessed the subject accident. McGuire testified that the accident area would be cleaned by the dockhands if there was snow and ice, and Steamboat wants them to clean out this entire curb and about a foot past. He also testified that the rest of the (areawould be cleaned out by the contractor. At his deposition, Donald Fromm testified to the effect that he is the port captain and operations manager employed by Steamboat and is responsible for the general maintenance of the land areas. Mr. Fromm testified that, even if the dock persons ordinarily go with ice melt and spread it around throughout the day, it is not a normal practice for them to check for ice. He also testified that the sidewalk area right close to the curb would be cleaned by the dock persons because the plows can[not] g:t close enough to do that. At his deposition, Joseph Carney testified to the effect that he is the supervisor employed by Steamboat, and one of his responsibilities was snow removal. Mr. Carney testified that the dockhands would have blown snow in the accident area. At his deposition, Roben: Puckey testified to the effect that he is the president of S & S Landscapi nigand that S & S Landscaping was hired by Steamboat to provide snow plowing. S & S [* 3] Schultz v I3ridgepo:rt Index No. 04- 19955 PageNo. ? Landscaping entere dinto a snow removal contract with Steamboat during the 2003-2004 winter. Mr. Puckey testified that he plowed snow for three and a half hours on January 15,2004 and that he put down the sandsalt mixture in the parking lot on January 15 and January 16. He also testified that no one from Steamboat supervised and inspected S & S Landscaping s snow removal work when the work WilS done. Mr. Puckey testified that he could not plow one to two feet before the curb of the walkway without damaging the curve or the machine. Pursuant to the contract between Steamboat and S & S Landscaping, S & S Landscaping was obligated to plow snow on parking lots when 2 of snow has fallen or within one hour of being contacted by the representative of Steamboat. S & S Landscaping was also obligated to perform ice removal se.rvices through the use of salthand on an as needed basis. Because i l finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party. In general, contractual obligations will not create a duty toward a third party unless (1) the third party has reasonably relied, to his or her detriment, on the continued performance of the contracting party s dutilss under the contract; l(2) the contract is so comprehensive and exclusive that it completely displaces the other contracting,psuty s duty toward the third party; or (3) the contracting party has launched a force or instrument of ham. thereby creating or exacerbating a dangerous condition, see, Espinal v Melville Snow Contrs., 98 NY2d 136 [2002]; Karac v City of Elmira, 14 AD3d 842 [3d Dept 20051. When a party, including a snow removal contractor, by its afirmative acts of negligence has created or exacerbated a dangerous condition which is the proximate cause of plaintiffs injuries, it may be held liable in tort, see, Espinal v Melville Snow Contrs., supra; Finueroa v Lazarus Burman AssocsZ, 269 AD2d 215 [ 1st Dept 20001. In order to make a prima facie showing of entitlement to judgment as, a matter of lawyS & t3 Landscaping was required to establish that it did not perform any snow removal operations relateld to the condition which caused plaintiffs injury or, alternatively, that if it did perform such operations, those operations did not create or exacerbate a dangerous condition, see. Prendervillel International Serv. Svs., 10 AD3d 334 [lst Dept 20041. Htxe, S RL S Landscaping failed to establish its entitlement to judgment as a matter of law. S 8: S Landscaping has offered no evidence as to the objective measurements of the alleged accident site, except for photolj and plaintiff si testimony. There are several questions of fact as to the distance between the accident site and the curb of the walkway and whether S & S Landscaping was not responsib:e for snow and ice removal in the area where the accident allegedly occurred. Moreover, the evidence on the record reflects that S & S Landscaping plowed snow on January 15,2004 and put down the sandhalt mixture in the parking lot on January 15 and January 16. Plaintiff testified that she saw a thin coat of ice - approximately 24 inches wide and 12 inches long - and that there was no sand or salt visible on the ground in the area where she fell. Under these circumstances, there are also questions of fact as to whether S & S Landscaping properly applied the sandhalt mixture and whether S & S Landscaping exacerbated the icy condition of the subject property by the improper application of the mixture wliere plaintiff fell, see, Prenderville v International Serv. Svs., id.; Beckham v Board of EducL of City of New York, 267 AD2d 189 [2d Dept 19991. [* 4] Schultz v 13ridgepoi-t Index No. 04-19953 Page No. 4. Accordingly, the motion by defendant S & S Complete Landscaping Corp. for summary judgment clismissing the complaint against it is denied. FINAL DISPOSITION X NON-FINAL DISPOSITION

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