You are here: / / SNOW-REMOVAL COMPANY NOT LIABLE TO PLAINTIFF BECAUSE PLAINTIFF WAS NOT...
,

SNOW-REMOVAL COMPANY NOT LIABLE TO PLAINTIFF BECAUSE PLAINTIFF WAS NOT A PARTY TO THE SNOW-REMOVAL CONTRACT; NO NEED FOR DEFENDANT TO ADDRESS ESPINAL EXCEPTIONS IN ITS SUMMARY JUDGMENT MOTION IF THE EXCEPTIONS ARE NOT PLED BY THE PLAINTIFF.

The Second Department determined defendant snow-removal company, Brickman, was entitled to summary judgment dismissing the complaint in this slip and fall case. Because the plaintiff was not a party to the snow-removal contract with the owner of the property, Brickman owed no duty to plaintiff. The court noted that, because the plaintiff did not allege the applicability of any of the “Espinal” exceptions to the general rule against tort liability arising from a contract, the defendant was not obligated to address those exceptions in its summary judgment motion:

 

A contractual obligation, standing alone, generally will not give rise to tort liability in favor of a third party (see Espinal v Melville Snow Contrs., 98 NY2d 136, 138). However, there are three exceptions to that general rule: “(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, and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” … .

Brickman made a prima facie showing of its entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by submitting evidence that the plaintiff was not a party to its snow removal agreement, and that it thus owed her no duty of care … . Inasmuch as the plaintiff did not allege facts in the complaint or bill of particulars that would establish the possible applicability of any of the Espinal exceptions … , Brickman was not required to affirmatively demonstrate that these exceptions did not apply in order to establish its prima facie entitlement to judgment as a matter of law … .

Once Brickman made its prima facie showing, the burden shifted to the plaintiff to come forward with proof sufficient to raise a triable issue of fact as to the applicability of one or more of the Espinal exceptions … . In opposition to Brickman’s prima facie showing, the plaintiff failed to raise a triable issue of fact as to whether Brickman launched a force or instrument of harm, whether she detrimentally relied on the continued performance of Brickman’s duties, or whether Brickman entirely displaced the owner’s duty to maintain the premises in a safe condition … . Bryan v CLK-HP 225 Rabro, LLC, 2016 NY Slip Op 01280, 2nd Dept 2-24-16

 

NEGLIGENCE (NO TORT LIABILTIY AROSE FROM SNOW-REMOVAL CONTRACT, PLAINTIFF NOT A PARTY)/SUMMARY JUDGMENT (DEFENDANT NEED NOT ADDRESS ESPINAL EXCEPTIONS TO THE RULE AGAINST TORT LIABILITY ARISING FROM CONTRACT IN A SUMMARY JUDGMENT MOTION IF NOT ALLEGED BY THE PLAINTIFF)/CONTRACT LAW (DEFENDANT NEED NOT ADDRESS ESPINAL EXCEPTIONS TO THE RULE AGAINST TORY LIABILITY ARISING FROM CONTRACT IN A SUMMARY JUDGMENT MOTION IF NOT ALLEGED BY THE PLAINTIFF)/ESPINAL EXCEPTIONS (DEFENDANT NEED NOT ADDRESS ESPINAL EXCEPTIONS TO THE RULE AGAINST TORY LIABILITY ARISING FROM CONTRACT IN A SUMMARY JUDGMENT MOTION IF NOT ALLEGED BY THE PLAINTIFF)

You might also like
NO SUPERVISORY CONTROL OVER THE MANNER OF PLAINTIFF’S WORK, INJURY WAS NOT THE RESULT OF THE ABSENCE OR FAILURE OF A SAFETY DEVICE, LABOR LAW 200 AND 240 (1) CAUSES OF ACTION PROPERLY DISMISSED (SECOND DEPT).
THE SEARCH WARRANT SEEKING CELL SITE LOCATION INFORMATION (CSLI) FROM THE NEW JERSEY CELL PHONE COMPANY WAS FAXED TO NEW JERSEY FROM NEW YORK; THEREFORE THE WARRANT WAS “EXECUTED” IN NEW YORK AND DID NOT VIOLATE THE NEW YORK CONSTITUTION OR CPL ARTICLE 690 (SECOND DEPT). ​
“Professional Judgment Rule” Did Not Preclude Lawsuit; Plaintiff Bitten by Police Dog While Assisting Police in a Search
Bus Company’s Duty of Care Did Not Include Keeping Steps to the Bus Dry and Free of Snow During a Snow Storm
DISCOVERY VIOLATIONS WARRANTED DISMISSAL OF THE COMPLAINT (SECOND DEPT).
Not Clear Superior Court Information (SCI) Charged Same Offense as Felony Complaint/SCI and Related Waiver of Indictment Not Valid
THE RULING THAT PETITIONER-CORRECTION-OFFICER’S DISABLING CONDITION WAS NOT CAUSED BY AN ALTERCATION WITH AN INMATE WAS SUPPORTED BY “SUBSTANTIAL EVIDENCE;” “SUBSTANTIAL EVIDENCE” IN THIS CONTEXT IS DEFINED (SECOND DEPT).
ELEVATOR MAINTENANCE COMPANY PROPERLY GRANTED SUMMARY JUDGMENT IN THIS (ALLEGEDLY) MISALIGNED ELEVATOR SLIP AND FALL CASE, THE MAINTENANCE COMPANY DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION AND PLAINTIFFS FAILED TO DEMONSTRATE THE DOCTRINE OF RES IPSA LOQUITUR APPLIED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2024 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

LEVEL OF SUPERVISORY CONTROL NEEDED TO SUPPORT A LABOR LAW 200 CAUSE OF ACTION... NEGLIGENT SUPERVISION ACTION AGAINST DAY CARE PROVIDER PROPERLY DISMISSED.