Shanahan v Jim Haywood Real Estate Servs., LLC

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Shanahan v Jim Haywood Real Estate Servs., LLC 2020 NY Slip Op 34669(U) December 24, 2020 Supreme Court, Westchester County Docket Number: Index No. 52694/2018 Judge: Sam D. Walker Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] WESTCHESTER COUNTY CLERK 01/12/2021 11:53 AM NYSCEF DOC. NO. 52 INDEX NO. 52694/2018 RECEIVED NYSCEF: 01/12/2021 commence the the statutory statutory To commence time for for appeals appeals as of of right right time 5513[a]), you you are (CPLR 5513[a]), advised to to serve serve a copy copy advised of this this order, order, with with notice notice of of entry, entry, upon upon all parties. parties. of SUPREME COURT COURT OF THE STATE STATE OF NEW NEW YORK YORK SUPREME COUNTY OF WESTCHESTER WESTCHESTER COUNTY PRESENT: HON. SAM D. WALKER, WALKER, J.S.C. PRESENT: -------------------------------------------------------------------------X -------------------------------------------------------------------------)( JOHN STEVEN STEVEN SHANAHAN SHANAHAN and JANE JANE SHANAHAN, SHANAHAN, JOHN Plaintiffs, Plaintiffs, DECISION AND ORDER DECISION AND ORDER Index No.:52694/2018 NO.:52694/2018 Index Seq# 2 Seq# -against-againstHAYWOOD REAL REAL ESTATE ESTATE SERVICES, SERVICES, LLC LLCand JIM HAYWOOD and GRIFFIN'S LANDSCAPING LANDSCAPING CORP., CORP., GRIFFIN'S Defendants. Defendants. ---------------------------------------. -------------------------------- X ---------------------------------------~-------------------------------)( The following following papers papers were were received received and considered considered in connection connection with the plaintiff's plaintiff's The motion for for a default default judgment: motion judgment: Notice of Motion/Affirmation/Exhibits Motion/Affirmation/Exhibits A-J Notice Affirmation Opposition Affirmation in Opposition Reply Affirmation Reply Affirmation foregoing papers papers it is ordered ordered that that this this motion motion is granted. granted. Upon the foregoing Procedural and Factual Factual Background Background Procedural The plaintiffs, plaintiffs, John John Steven Steven Shanahan Shanahan ("Shanahan") ("Shanahan") and Jane Jane Shanahan Shanahan The commenced this action action by filing a summons summons and complaint complaint on February February 26, 26,2018, seeking 2018, seeking commenced damages for for alleged alleged personal personal injuries injuries sustained sustained by Shanahan Shanahan on March March 1, 1,2015, when he damages 2015, when alleges that that he slipped slipped and fell on a patch patch of ice in the parking parking lot of his condo condo complex, complex, alleges next to the building building located located at 52 Fair Street, Street, Cold Spring, Spring, New New York. next York. Shanahan's Shanahan's wife, Jane Shanahan Shanahan brings brings a consortium consortium claim. claim. Jane At the time time of the alleged alleged incident, incident, the defendant, defendant, Jim Haywood Haywood Real Estate Estate Services, LLC ("Haywood"), ("Haywood"), was property manager manager for for the the condominium condominium and had a Services, was the property 1 of 5 [*FILED: 2] WESTCHESTER COUNTY CLERK 01/12/2021 11:53 AM NYSCEF DOC. NO. 52 INDEX NO. 52694/2018 RECEIVED NYSCEF: 01/12/2021 the end ct snow n's"), to condu contract Griffin's's Lands Landscaping ("Griffin's"), conduct snow plowin plowingg at at the end caping Corp. ("Griffi with Griffin ct with contra ed the ently shovel od and Griffin of each each snowfa snowfall. The plaintif plaintiffs allege that that Haywo Haywood Griffin's's neglig negligently shoveled the fs allege ll. The of ed han sustain snow and and ice ice in in the the parkin parkingg lotwhe lotwherere Shana Shanahan result, Shana Shanahan sustained han fell and as a result, snow od int, but the compla answer to the fractures his hip. hip. Griffin Griffin's's served complaint, but Haywo Haywood filed an answer serv~d and filed to his fractures to judgment agains for defaul usly moved defaulted in answe answering plaintiffs previously moved for defaultt judgment againstt · fs previo ring and the plaintif ted in defaul on and Order, Haywood, motion this this Court Court grante grantedd by Decisi Decision Order, dated dated June June 17, 17, 2019. 2019. which motion od, which Haywo to judgment seekin ary judgment for summ Now before before the the Court Court is the the defend defendant's motion for summary seekingg to ant's motion Now that obligations; that ctual obligations; ed its contra dismisss the action agains againstt it, arguing performed contractual fully perform that it fully arguing that the action dismis ion and did not not have have actual actual or constr constructive notice of of the alleged alleged icy condit condition and did did not not create create uctive notice itit did fs. the conditi condition; owe a duty duty of of care care to the the plaintif plaintiffs. that it did not owe on; and that the for contract for the contract things, the In suppo supportrt of of the the motion motion,, Griffin Griffin's's relies relies upon, upon, among among other other things, In s, snow plowin plowing, deposition plaintiffs Glenn J. Griffin, Griffin, the owner owner of of Griffin' Griffin's, fs and Glenn ition of the plaintif the depos g, the snow gs. tion and copies photos of of the accident location, attorney's affirmation copies of of the the pleadin pleadings. y's affirma n, an attorne nt locatio the accide photos The plaintif plaintiffs opposee the the motion motion,, arguin arguingg that that Griffin Griffin's's motion motion should should be be denied denied fs oppos The a submitted a exist. Griffin fact exist. because did not not meet meet its burden burden and.m andmaterial issues of of fact Griffin's's submitted aterial issues se itit did becau that fs and the plaintif to the ion to reply to plaintiffs' obligation plaintiffs and that that it had no obligat arguing that opposition, arguing fs' opposition, the plaintif to the reply would patrol ted and was comple work was Haywood performed snow remov removal after Griffin Griffin's's work completed and would patrol al after ed snow od perform Haywo od's Therefore, Haywo for ice ice and and hazard hazardous conditions, would salt salt and sand sand the the lot. Therefore, Haywood's ons, and would ous conditi fo_r fs could the plaintif duty to to the the plaintif plaintiffs not displac displaced Griffin's's and the plaintiffs could not not have have ed by Griffin was not fs was duty s. detrimentally upon Griffin' Griffin's. entally relied upon detrim Discussion sion Discus facie showin "[T]he propon proponent of a summ summary judgment motion must must make make a prima prima facie showingg gment motion aryjud ent of "[T]he strate to demon ce to sufficient eviden of entitle entitlement matter of law, tendering evidence demonstrate tendering sufficient judgment as a matter to judgment ment to of 2 of 5 2 [*FILED: 3] WESTCHESTER COUNTY CLERK 01/12/2021 11:53 AM NYSCEF DOC. NO. 52 INDEX NO. 52694/2018 RECEIVED NYSCEF: 01/12/2021 the absence Hosp., 68 NY2d 320, 324 absence of any any material material issues issues of fact," fact," (Alvarez (Alvarez v Prospect Prospect Hosp., [1986]). when such such a showing [1986]). Only Only when showing has been been made made must must the opposing opposing party party set forth forth evidentiary proof in admissible evidentiary proof admissible form, form, establishing establishing the existence existence of a material material issue issue of fact fact (see e.g. Winegrad Winegrad v New New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). [1985]). "[T]he "[T]he prima prima facie judgment is facie showing showing which which a defendant defendant must must make make on a motion motion for for summary summary judgment governed governed by the allegations allegations of liability liability made made by the plaintiff plaintiff in the pleadings" pleadings" (see (see Foster Foster v Herbert AD3d 210, 214). Herbert Slepoy Slepoy Corp, 76 AD3d "Before "Before a defendant defendant may may be held liable liable for for negligence, negligence, it must must be shown shown that that the defendant AD2d 640, 641 [2d Dept defendant owed owed a duty duty to the plaintiff" plaintiff" (Ramo (Ramo v. v. Serrano, Serrano, 301 AD2d Dept 2003]). 2003]). "Generally, "Generally, a contractual contractual obligation, obligation, standing standing alone, alone; will not give give rise to tort tort liability liability AD3d 675, 676 in favor favor of a third third party" party" (Abramowitz (Abramowitz v Home Home Depot Depot USA, Inc., 79 AD3d 676 [2d Dept Dept 20101). "However, 2010]). "However, a party party who who enters enters into a contract contract to render render services services may may be said to assumed a duty duty of care, and thus thus be potentially potentially liable liable in tort tort to third third persons persons where where have assumed contracting party, party, in failing failing to exercise exercise reasonable reasonable care care in the performance performance of its (1) the contracting duties, launches launches a force force or instrument instrument of harm, harm, (2) the plaintiff detrimentally detrimentally relies on the the plaintiff duties, continued performance performance of the contracting contracting party's party's duties, duties, or (3) the the contracting contracting party party has continued entirely displaced displaced the other other party's party's duty duty to maintain maintain the premises premises safely" safely" (/d.; (Id.; see also entirely Espinal v Melville Melville Snow Snow Contractors, Contractors, Inc., 98 NY2d 136, 140 [2002]). [2002]). Espinal this case, case, the property property is managed managed by Haywood, Haywood, which company hired Griffin's Griffin's In this which company perform snow snow plowing snow removal removal services services at the location, location, pursuant pursuant to an to perform plowing and snow agreement. Since Since there there is no contract contract between between Griffin's Griffin's and Shanahan, Shanahan, Griffin's Griffin's may may only only agreement. 3 of 5 found to owe a duty duty of care care to Shanahan Shanahan if one one of the above above three three exceptions exceptions exists. exists. be found [*FILED: 4] WESTCHESTER COUNTY CLERK 01/12/2021 11:53 AM NYSCEF DOC. NO. 52 INDEX NO. 52694/2018 RECEIVED NYSCEF: 01/12/2021 Griffin's contends contends that that neither neither the plaintiffs' plaintiffs' complaint complaint nor nor the bill of particulars particulars Griffin's alleges that that Griffin's Griffin's launched launched a force force or instrument instrument of harm; harm; or that that Shanahan Shanahan relied to his alleges detriment on the services services of Griffin's; Griffin's; or that that Griffin's Griffin's entirely entirely displaced displaced Haywood's Haywood's duty duty to detriment maintain the premises. premises. The The Court Court concurs concurs with this contention. contention. maintain Further, the Court Court finds finds that that the Espinal Espinal exceptions exceptions do not apply apply in this this case. While While Further, Shanahan argues argues that that Griffin's Griffin's snow snow removal removal activities created a dangerous, dangerous, slippery, slippery, icy, Shanahan activities created unsafe condition, condition, there there is no evidence evidence to support support this. The The mere mere clearing clearing or plowing plowing and unsafe snow "cannot "cannot be said to have have created created or exacerbated exacerbated a dangerous dangerous condition" condition" (see of the snow Espinal v Melville Melville Snow Snow Contractors, Contractors, Inc., 98 NY2d 136, 142 [2002]). [2002]). Additionally,"a claim Additionally,"a claim Espinal that a contractor contractor exacerbated exacerbated an existing existing condition condition requires requires some some showing showing that that the that contractor left the premises premises in a more more dangerous dangerous condition condition than than he or she found found them" them" contractor (Berger v NYCO NYCO Plumbing Plumbing & Heating Heating Corp., 127 AD 3d 676, 677 677 [2d Dept Dept 2015]). 2015]). AD3d (Berger With regard regard to detrimental detrimental reliance, reliance, "[t]he "[t]he nexus nexus for for a tort tort relationship relationship between between the With defendant's contractual contractual obligation obligation and the injured injured noncontracting noncontracting plaintiff's plaintiff's reliance reliance and defendant's injury must must be direct direct and demonstrable, demonstrable, not incidental incidental or merely merely collateral" collateral" (see Palka Palka v injury Servicemaster Management Management Services Services Corp., 83 NY2d 579, 587 [1994 [1994]). plaintiffs ]). Here, the plaintiffs Servicemaster testified that that they they had no dealings dealings with the snow-plowing snow-plowing services services and there there is no evidence evidence testified that they they had any any knowledge agreement between between Haywood Haywood and Griffin's. Griffin's. Therefore, Therefore, that knowledge of an agreement they did not detrimentally detrimentally rely upon Griffin's Griffin's proper proper performance performance of its contractual contractual duties duties they Foster v Herbert Herbert Slepoy S/epoy Corp., 76 AD3d AD3d 210 [2d Dept Dept 20101). 2010]). ((see see Foster With regard regard to the third exception, exception, Haywood's Haywood's contract contract with Griffin's Griffin's was not a With comprehensive and exclusive exclusive agreement, agreement, which which entirely entirely displaced displaced the owner's owner's duty duty to comprehensive 4 4 of 5 [*FILED: 5] WESTCHESTER COUNTY CLERK 01/12/2021 11:53 AM NYSCEF DOC. NO. 52 INDEX NO. 52694/2018 RECEIVED NYSCEF: 01/12/2021 maintain maintain the premises premises in a safe safe condition. condition. Although, Although, Griffin's Griffin's was was primarily primarily responsible responsible for for plowing plowing the snow snow and ice, Griffin's Griffin's also testified testified that that Haywood Haywood patrolled patrolled the property property for for ice and hazardous hazardous conditions conditions and salted salted and sanded sanded the lot. Therefore, Therefore, the the Court Court finds finds that that Griffin's Griffin's did not owe a duty duty of care to the plaintiffs plaintiffs and is not liable liable for for negligence negligence against against that defendant. defendant. that Accordingly, Accordingly, it is ORDERED that that the motion motion for for summary summary judgment granted; and it is further further ORDERED judgment is granted; ORDERED ORDERED that that the causes causes of action action against against Griffin's Griffin's Landscaping Landscaping Corp., Corp., is dismissed. dismissed. The The foregoing foregoing constitutes constitutes the Opinion, Opinion, Decision Decision and Order Order of of the Court. Court. Dated: White White Plains, Plains, New York York Dated: December 24, 2020 2020 December ~~.~ .2. ~ HON. SAM SAM D. WALKER, WALKER, J.S.C. J.S.C. 5 5 of 5

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