The Second Department determined the defendant property owner and defendant snow-removal contractor should have been awarded summary judgment in a slip and fall case. The court outlined the criteria for both causes of action:
” A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence'” … . Thus, to establish its prima facie entitlement to judgment as a matter of law, a property owner defendant moving for summary judgment is required to establish, prima facie, that it neither created nor had actual or constructive notice of the dangerous condition that allegedly caused the plaintiff to fall … . Here, … [the property owner] … established its prima facie entitlement to judgment as a matter of law by submitting the transcripts of the deposition testimony of … a maintenance supervisor, and … the snow removal contractor, which established, prima facie, that [the property owner] did not have actual or constructive notice for a sufficient length of time to discover and remedy the ice condition which allegedly caused the plaintiff to fall… . * * *
“As a general rule, a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties” … . “However, in Espinal v Melville Snow Contrs. (98 NY2d 136, 140), the Court of Appeals recognized that exceptions to this rule apply (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, or (3) where the contracting party has entirely displaced another party’s duty to maintain the subject premises safely” … .
Here, the plaintiff alleged [the snow-removal contractor] created the dangerous condition that caused her to slip and fall and, thus, launched a force or instrument of harm. In support of its motion, [the contractor] established, prima facie, that it did not create the allegedly dangerous condition which caused the plaintiff’s fall … . In opposition …, the plaintiff and [the property owner] failed to raise a triable issue of fact as to whether [the contractor] created or exacerbated the alleged hazardous condition … . The affidavit of the plaintiff’s expert as to the origin of the hazardous condition was speculative and conclusory and, thus, insufficient to defeat a motion for summary judgment … . Scott v Avalonbay Communities Inc, 2015 NY Slip Op -1438, 2nd Dept 2-18-15