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NO ESPINAL EXCEPTIONS WERE PLED SO THE SNOW REMOVAL CONTRACTOR’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE WAS PROPERLY GRANTED; QUESTIONS OF FACT WERE RAISED ABOUT WHETHER THE STORM IN PROGRESS RULE APPLIED AND WHETHER THE AREA WAS SLIPPERY BEFORE THE STORM, PRECLUDING SUMMARY JUDGMENT IN FAVOR OF THE OTHER DEFENDANTS (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, in this slip and fall case, determined: (1) the snow removal contractor’s (Fitzgerald’s) motion for summary judgment was properly granted because no Espinal exception was pled; and (2) there were questions of fact whether there was a storm in progress at the time of the fall and whether there were slippery areas prior to the storm:

“[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” (Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]). Although there are three well-established exceptions to that rule (see id. at 140), plaintiff did not allege facts in his complaint or bill of particulars that would establish the applicability of any of those exceptions, and thus Fitzgerald was not required to affirmatively negate the possible application of any of them in order to meet her initial burden … . Instead, Fitzgerald had to demonstrate only that plaintiff was not a party to the snow removal contract and that she therefore owed no duty to him, which she accomplished by submitting a copy of the contract … . …

… [D]efendants submitted the deposition testimony of plaintiff, who testified that snow and rain had been predicted that day, but during the time leading up to his fall it was merely overcast. Thus, defendants’ own submissions raise an issue of fact whether there was a storm in progress at the time of the fall …. Furthermore, defendants submitted the deposition testimony of an assistant store manager, who testified that there were “a few” “different” “slippery spots” in the parking lot when she arrived for her shift at 2:00 p.m. on the day of plaintiff’s fall, thus raising issues of fact whether the slippery condition preexisted the alleged storm … , and whether defendants had actual or constructive notice of the slippery condition … . Govenettio v Dolgencorp of N.Y., Inc., 2019 NY Slip Op 06907, Fourth Dept 9-27-19

 

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