The Fourth Department determined the complaint against the snow removal contractor (JB Landscaping) in this slip and fall case should have been dismissed. The fact that the property was inspected three hours before the incident did not warrant dismissal of the constructive notice cause of action against the property manager (Ciminelli) and the property owner (205 Park):
We conclude that the contract between JB Landscaping and Ciminelli was not so comprehensive and exclusive that it entirely displaced Ciminelli’s and 205 Park’s duty to maintain the premises safely, such that JB Landscaping assumed a duty to plaintiff. Although the contract in the case at bar delegated all of the snow and ice removal to JB Landscaping, along with responsibility for monitoring the property 24 hours per day, seven days per week, the contract also provided that 205 Park and the tenant of the property could request additional services from JB Landscaping, including snow and ice removal. In addition, the contract reserved Ciminelli’s rights “to determine the depth of snow at locations where JB Landscaping performs snowplowing” and to direct JB Landscaping to reposition or remove accumulated snow piles. The contract also required weekly submission of maintenance logs to Ciminelli and preapproval from Ciminelli to engage a subcontractor to assist with snow and ice removal. * * *
The weather records … recited … that from 3:01 a.m. until 6:24 a.m. the short term forecasts called for falling temperatures, and that any wet or untreated pavement could result in patchy black ice. Plaintiff testified that she fell at 7:45 a.m. In our view, the inspection of the area approximately three hours before the plaintiff fell does not establish ” that the ice formed so close in time to the accident that [defendant(s)] could not reasonably have been expected to notice and remedy the condition’ ” … . Waters v Ciminelli Dev. Co., Inc., 2017 NY Slip Op 00854, 4th Dept 2-3-17
NEGLIGENCE (SNOW REMOVAL CONTRACTOR DID NOT OWE A DUTY TO PLAINTIFF IN THIS SLIP AND FALL CASE, INSPECTION THREE HOURS BEFORE THE FALL DID NOT WARRANT DISMISSAL OF THE CAUSE OF ACTION ALLEGING CONSTRUCTIVE NOTICE)/SLIP AND FALL (SNOW REMOVAL CONTRACTOR DID NOT OWE A DUTY TO PLAINTIFF IN THIS SLIP AND FALL CASE, INSPECTION THREE HOURS BEFORE THE FALL DID NOT WARRANT DISMISSAL OF THE CAUSE OF ACTION ALLEGING CONSTRUCTIVE NOTICE)/SNOW REMOVAL CONTRACTOR (SLIP AND FALL, (SNOW REMOVAL CONTRACTOR DID NOT OWE A DUTY TO PLAINTIFF IN THIS SLIP AND FALL CASE)