Anderson v EP Glens Falls Realty, LLC

[*1] Anderson v EP Glens Falls Realty, LLC 2016 NY Slip Op 50187(U) Decided on February 22, 2016 Supreme Court, Warren County Muller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 22, 2016
Supreme Court, Warren County

Debbie M. Anderson, Plaintiff,

against

EP Glens Falls Realty, LLC, GLENS FALLS CROSSINGS, LLC, THE PINES AT GLENS FALLS and JIM GIRARD LANDSCAPE MAINTENANCE CORPORATION, Defendants.



59840



Law Office of Martin & Martin, Glens Falls (Michael Martin of counsel), for plaintiff.

O'Connor, O'Connor, Bresee & First, P.C., Albany (Danielle N. Meyers of counsel), for defendant.
Robert J. Muller, J.

This is a defense motion for summary judgment involving a slip and fall that occurred at approximately 7:00 P.M. on March 1, 2011 in a parking lot owned by defendant The Pines at Glens Falls Center for Nursing and Rehabilitation (hereinafter The Pines), located at 170 Warren Street in the City of Glens Falls, Warren County. Plaintiff Debbie M. Anderson was an employee of The Pines and defendant Jim Girard Landscape Maintenance Corporation (hereinafter Girard) is the movant. The causes of action relating to Girard concern allegations of negligence and warranty.[FN1] Girard is a property maintenance company that contracted with The Pines to provide numerous landscaping services, including snow plowing and sanding. The winter related services encompassed snow plowing at specified hours following a snow accumulation of one inch. This included sanding of parking lots and applying rock salt to icy patches of those parking lots simultaneous with the snow plowing. In the absence of any precipitation Girard performed no additional services unless called upon by The Pines to do so; monitoring the premises for thaw/freeze conditions was not included in its contract. The Pines also had twenty-four access to Girard by cell phone should services described by the contract be required. Notably, the contract provided that applications of sand to the parking lots "(1) shall be [*2]at the discretion of the contractor and (2) upon request from the appointed agent for [The Pines]" [emphasis added]. The Court interprets the first provision to apply simultaneous to snow plowing and the second at another point in time. Hence, if there were melting and re-freezing snow, the responsibility to address it was retained by The Pines alone to decide whether parking area conditions warranted application(s) of salt-sand. On the date of this incident, Girard denies having been summoned to provide any services. Snow plowing operations prior to the date of plaintiff's incident last occurred on February 27 and 28, 2011 and the submissions on this motion amply demonstrate there was no further precipitation from February 28, 2011 to the date of the incident.

The essence of Girard's motion has several moving parts. In order to prove a negligence action plaintiff must show that: (1) defendant owed plaintiff a duty of care; (2) defendant breached that duty of care; and (3) the breach proximately caused damages to plaintiff (see Turcotte v Fell, 68 NY2d 432, 437 [1986]; Evarts v Pyro Eng'g, Inc., 117 AD3d 1148, 1150 [2014]; see also Ortega v Liberty Holdings, LLC, 111 AD3d 904, 906 [2013]; Merchants Mut. Ins. Co. v Quality Signs of Middletown, 110 AD3d 1042, 1043 [2013]).

" The existence and scope of [the] alleged tortfeasor's duty is, in the first instance, a legal question for determination by the court'" (Evarts v Pyro Eng'g, Inc., 117 AD3d at 1150, quoting Di Ponzio v Riordan, 89 NY2d 578, 583 [1997] [citations omitted]). "In analyzing questions regarding the scope of an individual actor's duty, the courts look to whether the relationship of the parties is such as to give rise to a duty of care, whether . . . plaintiff was within the zone of foreseeable harm and whether the accident was within the reasonably foreseeable risks" (Di Ponzio v Riordan, 89 NY2d at 582 [citations omitted]; see Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]; Palka v ServiceMaster Mgmt. Servs. Corp., 83 NY2d 579, 585 [1994]; Kemper v Arnow, 18 AD3d 939, 940-941 [2005]; see also Dance Magic, Inc. v Pike Realty, Inc., 85 AD3d 1083, 1088-1089 [2011]).

The "contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party" (Espinal v Melville Snow Contrs., 98 NY2d at 138; see Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, 226 [1990]). To the contrary, such a contractual obligation " will impose a duty only in favor of the promisee and intended third-party beneficiaries'" (Espinal v Melville Snow Contrs., 98 NY2d at 140, quoting Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d at 226). It is a precisely and oft repeated rule that contracts for snow removal, independently, do not create a duty to exercise reasonable care (see Espinal v Melville Snow Contrs., 98 NY2d at 138; Belmonte v Guilderland Assoc., LLC, 112 AD3d 1128, 1129 [2013]; Baker v Buckpitt, 99 AD3d 1097, 1098 [2012]; Gibson v Dynaserv Indus., Inc., 88 AD3d 1135, 1135 [2011]; Phillips v Young Men's Christian Assn., 215 AD2d 825, 826 [1995]; see also DeCanio v Principal Bldg. Servs. Inc., 115 AD3d 579, 579 [2014]; Roach v AVR Realty Co., LLC, 41 AD3d 821, 823 [2007]; McConologue v Summer St. Stamford Corp., 16 AD3d 468, 469 [2005]).

There are exceptions to this rule and Espinal v Melville Snow Contrs. (supra) instructs of three situations upon which it may be concluded that a party who enters into a contract to render services may be said to have assumed the duty of care — and thus be potentially liable in tort — to third persons: "(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm'; (2) where the plaintiff [*3]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, quoting Moch Co. v Rensselaer Water Co., 247 NY 160, 168 [1928]; see Church v Callanan Indus., 99 NY2d 104, 111 [2002]; Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 589 [1994]; Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d at 226; Baker v Buckpitt, 99 AD3d at 1098; Gibson v Dynaserv Indus., Inc., 88 AD3d at 1135; Phillips v Young Men's Christian Assn., 215 AD2d at 826).

Taking this analysis incrementally plaintiff is not a contracting party and thus Girard only owes a duty to plaintiff if one of the exceptions outlined in Espinal v Melville Snow Contrs. (supra) applies. First is whether Girard launched a force or instrument of harm or worsened the conditions of the parking lot. In order to succeed here plaintiff must present evidence that defendant " left the premises in a more dangerous condition than [it] found them' or, launched a force or instrument of harm that caused her to fall and be injured" (Gibson v Dynaserv Indus., Inc., 88 AD3d at 1136, quoting Foster v Herbert Slepoy Corp., 76 AD3d 210, 215 [2010]; see Church v Callanan Indus., 99 NY2d at 111; Moch Co. v Rensselaer Water Co., 247 NY at 168). The majority of plaintiff's negligence allegations are that defendant was inactive and failed to improve the condition of the lot "having actual notice and knowledge of the danger created by the aforesaid condition, [and] act[ing] with gross negligence and carelessness in failing to warn and/or inform . . . plaintiff . . . of the unsafe, dangerous, and hazardous condition of said parking lot."

Insofar as the only allegation of affirmative harm pertains to Girard's piling of snow, Peters v United Ref. Co. of Pa., 57 AD3d 1512 (2008) is illustrative of the burden plaintiff must meet here. There, plaintiff argued that a snow plow contractor had "negligently created or exacerbated a dangerous condition by piling mounds of snow on the perimeter of the property, which then melted and re-froze" (id. at 1512). That Court was not persuaded and granted summary judgment dismissing the action based upon its finding that (1) the contract was for plowing, not snow removal; and (2) salting, sanding, or snow removal was to be done upon request only (see id. at 1512-1513). While the contract under consideration here does provide for snow removal, it does so only upon request and is unrelated to the contract obligations triggered by an ongoing snowfall. On the date of this incident, there was no precipitation, The Pines did not make a request for snow removal and did not request salting/sanding services for its parking areas. The Court is unpersuaded that plaintiff can establish application of this exception to the rule. Quite simply, plaintiff's conclusory allegations are insufficient to create a triable issue of material fact as to whether Girard launched an instrument of harm as to piling snow — or somehow made matters worse (see Baker v Buckpitt, 99 AD3d at 1100; see also Abbattista v King's Grant Master Assn., Inc., 39 AD3d 439, 441 [2007]; Zabbia v Westwood, LLC, 18 AD3d 542, 544-545 [2005]).

Next is to consider whether plaintiff detrimentally relied upon Girard's continued performance of the contract. "To limit an open-ended range of tort liability arising out of contractual breaches, injured non-contracting parties must show that the performance of contractual obligation [between others] has induced detrimental reliance [by them] on continued performance and inaction would result not merely in withholding a benefit, but positively or actively in working an injury" (Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d at 587 [*4][citations and internal quotation marks omitted]). "The nexus for a tort relationship between the defendant's contractual obligation and the injured noncontracting plaintiff's reliance and injury must be direct and demonstrable, not incidental or merely collateral" (id.; see Strauss v Belle Realty Co., 65 NY2d 399, 404 [1985]; White v Guarente, 43 NY2d 356, 361 [1977]; Ultramares Corp. v Touche, 255 NY 170, 182-185 [1931]). This rule has not evolved in a vacuum. "[T]he boundaries of duty are not simply contracted or expanded by the notion of foreseeability, for if it were, [e]very one making a promise having the quality of a contract will be under a duty to the promisee by virtue of the promise, but under another duty, apart from contract, to an indefinite number of potential beneficiaries when performance has begun'" (Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d at 586, quoting Moch Co. v Rensselaer Water Co., 247 NY at 168; see Beck v FMC Corp., 42 NY2d 1027, 1028 [1977]; Tobin v Grossman, 24 NY2d 609, 616-617 [1969]).

The submissions on this motion clearly establish plaintiff's status on this topi" target="_blank">Gutarts v Fox, 104 AD3d 457, 459 [2013]; see Milau Assoc. v North Ave. Dev. Corp., 42 NY2d 482, 488 [1977]; Perlmutter v Beth David Hosp., 308 NY 100, 108 [1954]; Mallards Dairy, LLC v E & M Engrs. & Surveyors, P.C., 71 AD3d 1415, 1417 [2010]). "Rather, [i]f [services are] performed negligently, the cause of action accruing is that for negligence. Likewise, if it constitutes a breach of contract, the action is for that breach'" (Mallards Dairy, LLC v E & M Engrs. & Surveyors, P.C., 71 AD3d at 1417, quoting Aegis Prods. v Arriflex Corp. of Am., 25 AD2d 639 [1966]; see Rochester Fund Muns. v Amsterdam Mun. Leasing Corp., 296 AD2d 785, 787 [2002]). In this case the contract was one for services and plaintiff cannot succeed under a theory of express or implied warranty (see Gutarts v Fox, 104 AD3d at 459; Milau Assoc. v North Ave. Dev. Corp., 42 NY2d at 488; Perlmutter v Beth David Hosp., 308 NY at 108; Mallards Dairy, LLC v E & M Engrs. & Surveyors, P.C., 71 AD3d at 1417). Summary judgment on the fourth cause of action is also granted.

The within constitutes the Decision and Order of this Court.

Accordingly, and based upon the foregoing, it is hereby

ORDERED that Girard's motion for summary judgment dismissing the complaint is granted in its entirety; and it is further

ORDERED that any relief not specifically addressed herein has nonetheless been considered and is expressly denied.

The original of this Decision and Order has been filed by the Court. The Notice of Motion dated September 21, 2015 has been filed by the Court together with the submissions [*6]referenced below. Counsel for defendant is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon plaintiff in accordance with CPLR 5513.

Dated:February 22, 2016

Lake George, New York

____________________________________

Robert J. Muller, J.S.C.

ENTER:

Papers reviewed:

1.Affidavit of Danielle N. Meyers, Esq., sworn to September 21, 2015, together with Exhibits "A" through "I";

2.Memorandum of Law of Danielle N. Meyers, Esq., dated September 21, 2015;

3.Affidavit in Opposition of Michael S. Martin, Esq., sworn to January 7, 2016, together with Exhibits "A" through "G";

4.Affidavit of Debbie M. Anderson, sworn to January 7, 2016;

5.Affidavit of Yvonne Cappiello, sworn to January 4, 2016;

6.Affidavit of Constance R. Blackmer, sworn to January 5, 2016;

7.Affidavit of Brenda L. Gottlieb, sworn to January 7, 2016;

8.Affidavit of Jacqueline A. Roberts, sworn to January 7, 2016;

9.Affidavit of Virginia Pecue, sworn to January 7, 2016, together with Exhibit "A"; and

10.Reply Affidavit of Steven V. Debraccio, Esq., sworn to January 20, 2016

and upon oral argument held on February 22, 2016.

Footnotes

Footnote 1:Plaintiff has discontinued the action as against all remaining defendants, thus rendering the other causes of action in the complaint moot.