Opinion
101694/2009.
Decided August 1, 2011.
On December 24, 2008, the plaintiff, Jane Kipp, while walking to the bus stop allegedly slipped and fell on ice which developed on a speed bump in the roadway located on defendant Aspen Knolls Homeowners' Association's property [hereinafter "Aspen Knolls"]. Defendant Wentworth Property Management Inc., [hereinafter "Wentworth"] is the property management company for defendant Aspen Knolls.
The plaintiff resides at 154 Jamie Lane, Staten Island, New York, which is located in defendant Aspen Knolls housing complex. The plaintiff contends that on December 24, 2008, at approximately 4:30 a.m., while she was traversing the roadway on her way to the bus stop, she slipped and fell on ice on a speed bump. On July 14, 2009, the plaintiff commenced this action against defendants Aspen Knolls and Wentworth contending they were negligent in their maintenance of the property. Third-party defendant Commercial was impleaded by defendant Aspen Knolls as they were the contracted snow removal company. Presently issue has been joined and discovery is complete. The defendants Aspen/Wentworth and third-party defendants Commercial are both separately moving for summary judgment on the ground that their respective maintenance of the property was not negligent.
It is well settled that "an owner of real property has a duty to maintain the property in a reasonably safe condition" ( Basso v Miller, 40 NY2d 233, 241). In order to establish a prima facie case of negligence for a dangerous snow and ice condition, plaintiff must prove that the defendant either created the condition, or had notice of the condition, and had a reasonable time to remedy the situation ( Simmons v. Elmcrest Homeowners' Ass'n , 11 AD3d 447 , 447 [2d Dept. 2004]; Bergan v. Carlin, 297 AD2d 692, 693 [2d Dept. 2002]).
In support of their motion, defendants Aspen/Wentworth have submitted evidence in admissible form that they did not create nor possess actual or constructive notice of the alleged condition ( Maguire v. Beyer , 31 AD3d 621 , 622-623 [2d Dept 2006]). The defendants' Aspen/Wentworth presented evidence that the last prior snowfall/precipitation was four/five days prior to plaintiffs accident; that during the 4 a.m. hour on the day of the accident that freezing rain had begun to fall and that defendants Aspen Knolls/Wentworth took "extensive" measures in ensuring no snow or ice was on the roadway. The defendants further contend that they contracted with the outside vendor, third-party defendants Commercial, to remove snow/ice from the property and that Commercial would do so at the direction of "Michelle" the property manager at the time of the accident and had salted the previous day. There is no evidence of notice with respect to the ice forming on speed bumps in the housing complex. However, the plaintiff has raised a triable issue of fact with respect to whether the lighting the in area was sufficient ( Morreale v. 105 Page HomeownersAssn. , 78 AD3d 1026 , 1027 [2d Dept., 2010]). The plaintiff presented the affidavit of her sister (who also resides in the complex) who indicated she complained to the defendants Aspen/Wentworth with respect to the alleged inadequate lighting in the area numerous times prior to the accident. As such, summary judgment with respect to defendants Aspen Knolls and Wentworth is hereby denied.
Commercial Maintenance Services' Motion
Generally, "breach of a contractual obligation will not be sufficient in and of itself to impose tort liability to noncontracting third parties upon the promisor" ( Church v. Callanan Indus., 99 NY2d 104; Lubell v. Stonegate at Ardsley Home Owners Assn. , 79 AD3d 1102 , 1103-4 [2d Dept., 2010]). In other words, "[a] limited contractual undertaking to provide snow removal services generally does not render the contractor liable in tort for the personal injuries of third parties" ( Lubell v Stonegate at Ardsley Home Owners Assn., Inc., 79 AD3d at 1104). However, there are three circumstances where liability is imposed; first, "where, in failing to exercise reasonable care in the performance of its duties, the [contracting party] launched a force or instrument of harm; second, when the plaintiff detrimentally relied upon the continued performance of the [contracting party]; or lastly, where [the contracting party] has entirely displaced the property owner's duty to maintain the premises safely" ( Roach v. AVR Realty Co. , LLC, 41 AD3d 821 , 822 [2d Dept. 2007]; Espinal v. Melville Snow Contractors, 98 NY2d 136, 140).
Here, defendant Commercial has met its burden establishing a prima facie entitlement to summary judgment ( Alvarez v. Prospect Hosp., 68 NY2d, 320, 326; Lubell v. Stonegate at Ardsley Home Owners Assn. , 79 AD3d 1102 , 1103-4 [2d Dept., 2010]). In opposition, the defendants/third-party plaintiffs Aspen Knolls/Wentworth contend that there are questions of fact with respect to whether Commercial failed to exercise reasonable care in its snow removal duty and launched a force of harm. This Court finds that argument unavailing. There is no evidence that third-party defendant Commercial launched a force of harm, created or had any notice of the alleged ice on the speed bump. As evidenced by the meteorological reports, no snow fell for over four/five days prior to plaintiffs accident and third-party defendants, Commercial, salted multiple times since that time (as evidenced by their Work Orders). Further, as there is some indication that sleet may have been falling around 4:00 a.m. the morning of plaintiff's accident, that wouldn't provide sufficient notice. As such, summary judgment is appropriate for third-party defendant Commercial.
Accordingly, it is
ORDERED that the defendants/third-party plaintiffs' Aspen Knolls Estates Homeowners' Association and Wentworth Property Management, Inc.'s motion for summary judgment is hereby denied, and it is further
ORDERED that third-party defendant Commercial Maintenance Service, Inc.'s motion for summary judgment is hereby granted, and it is further
ORDERED that any and all claims against third-party defendant Commercial Maintenance Service, Inc. are hereby dismissed, and it is further
ORDERED that all other requests for relief are hereby denied, and it is further
ORDERED that the Clerk enter Judgment accordingly.
THIS IS THE DECISION AND ORDER OF THE COURT.