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ALTHOUGH NO ESPINAL FACTORS WERE ALLEGED BY PLAINTIFF IN THIS SLIP AND FALL CASE, QUESTIONS OF FACT WHETHER DEFENDANT’S ORAL CONTRACT WITH THE PROPERTY OWNER TO REMOVE ICE AND SNOW ENTIRELY REPLACED THE PROPERTY OWNER’S DUTY, AND WHETHER DEFENDANT HAD CONSTRUCTIVE NOTICE OF A RECURRENT ICY CONDITION, PRECLUDED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. The plaintiff leased the ground floor apartment and defendant, the plaintiff’s mother, leased the second floor apartment. Plaintiff slipped and fell on ice on the exterior front steps of the two-family house. Defendant demonstrated she had a contractual arrangement with the property owner to remove ice and snow and, because plaintiff was not a party to the agreement, no duty of care was owed plaintiff (no Espinal factors were alleged by the plaintiff). But defendant raised questions of fact in opposition:

“[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” … . However, the Court of Appeals has recognized three exceptions to the general rule: “(1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, launche[s] 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” … .

Here, the defendant established … entitlement to judgment as a matter of law by demonstrating that she did not owe a duty of care to the plaintiff, since the plaintiff was not a party to the oral agreement between the defendant and the property owner … . Since the plaintiff did not allege facts in her pleadings that would establish the possible applicability of any of the Espinal exceptions, the defendant … was not required to affirmatively establish that these exceptions did not apply

However, in opposition … , the plaintiff raised a triable issue of fact as to whether … .  defendant’s oral agreement with the property owner regarding maintenance was comprehensive and exclusive so as to entirely displace the property owner’s duty to maintain … the exterior front steps and the gutter … . Additionally, the plaintiff raised a triable issue of fact as to whether the defendant had actual notice of an alleged recurrent dangerous condition regarding ice formation on the steps due to the leaky gutter, and was thus chargeable with constructive notice of each specific occurrence of the condition … .  Sampaiolopes v Lopes, 2019 NY Slip Op 03835, Second Dept 6-15-19

 

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