You are here: / Contract Law
,

Snow Removal Contractor May Be Liable to Plaintiff in Slip and Fall Action/Question of Fact Whether Failure to Use Low-Temperature Salt Created a Dangerous Condition

The Third Department determined there was a question of fact whether a contractor hired to clear snow and ice created a dangerous condition by not using salt designed for low temperatures:

While a snow removal contractor is generally not liable to injured persons who were not parties to the contract …, plaintiffs argue the recognized exception that extends a duty to noncontracting third parties where the contractor fails to exercise reasonable care in the performance of duties such that he or she “‘launche[s] a force or instrument of harm'” … .

In opposition to the motion for summary judgment, plaintiffs submitted affidavits from experts who opined that, among other things, [defendant’s] application of plain, untreated rock salt to the parking lot on the morning in question was negligent because temperatures, which were below 20 degrees Fahrenheit, were too cold for plain rock salt to be effective.  According to plaintiffs’ experts, by using untreated salt instead of treated, low temperature salt, [defendant] caused snow shoveled from the sidewalk to the parking lot … to melt and then quickly refreeze, creating a layer of ice beneath the snow. There is no dispute that [defendant] had the option of using untreated or treated salt pursuant to the contract and that he had both kinds available.  There was also evidence that [defendant] was aware that snow would be shoveled from the sidewalk onto the parking lot, and [a witness] testified that he had observed salt in the area where plaintiff fell.  This evidence sufficiently raises a question of fact as to whether [defendant] “‘negligently create[d] or exacerbate[d] a dangerous condition'” by using untreated salt, resulting in the formation of the ice on which plaintiff allegedly slipped… .  Belmonte v Guilderland Associates LLC…, 516830, 3rd Dept 12-12-13

 

,

Language of Collective Bargaining Agreements Entitled Retirees to the Same Health Benefits As Were In Effect at the Time of Retirement

In a full-fledged opinion by Judge Lippman, the Court of Appeals determined the language used in successive collective bargaining agreements established a vested right to a continuation of the same health coverage in effect at the time of an employee’s retirement:

We hold that the contracts establish a vested right to a continuation of the same health coverage under which plaintiffs retired, until they reach age 70, and that the Insurance Moratorium Law does not provide a basis for abrogating retirees’ vested contractual rights.  However, because issues of fact remain as to the intended scope of plaintiffs’ right, remittal for further factual development is required to determine whether the challenged increases in co-pays for prescription drugs amount to a breach of contract. Kolbe… v Tibbetts…, 235, CtApp 12-12-13

 

 

,

Defendant’s Snow Removal Practices May Have Caused Icy Condition in Parking Lot

In a slip and fall case, the Third Department determined there was a question of fact about whether the snow removal practices of defendant’s contractor created the dangerous icy condition:

…[T]here are factual issues posed as to whether defendant’s snow removal procedures created the dangerous condition.  Defendant had hired an outside contractor to plow the snow into piles.  Plaintiff alleges that some of the piles were located on the parking lot’s perimeter, as well as between her parking spot and the sidewalk adjacent to the building.  There is a slight grade extending from these areas, encompassing the area of her fall.  Thus, there are factual issues as to whether the snow removal techniques caused the dangerous icy condition when the snow piles melted in the warm weekend weather and then refroze in the night before plaintiff’s accident… . Riozzi v 30 Kingston Realty Corporation, 516533, 3rd Dept 12-5-13

 

,

Broker Entitled to Commission Based Upon Defendant’s Refusal of a Purchase Offer/Copy of Purchase Offer Properly Put in Evidence

The Third Department determined plaintiff real estate broker was entitled to a commission because he presented a willing buyer at the price agreed to in the listing agreement and one of the property owners, the defendant, refused the offer because he no longer wanted to sell. In the course of the decision, the court noted that a copy of the purchase offer was properly received in evidence (in the absence of the original):

“In the absence of an agreement to the contrary, a real estate broker will be deemed to have earned his [or her] commission when he [or she] produces a buyer who is ready, willing and able to purchase at the terms set by the seller” … . The listing agreement identified the parties, the property, the asking price, and an agreement to pay an 8% commission in exchange for plaintiff producing a buyer.  This was sufficient information to create a valid listing agreement … .  Defendant asserts that the listing agreement is invalid because not all of the property owners signed it … .  However, a contract to pay compensation to a real estate broker or salesperson need not be in writing to be effective (see General Obligations Law § 5-701 [a] [10]).  …

Supreme Court did not err in accepting into evidence a copy of a second version of the offer to purchase.  Although the best evidence rule “requires the production of an original writing where its contents are in dispute and sought to be proven” …, secondary evidence of the contents of an unproduced original document may be admitted where the court finds a sufficient explanation for the absence of the original, that the proponent “has not procured its loss or destruction in bad faith,” and that the secondary evidence accurately reflects the original … .  Posson … v Przestrzelski, 516677, 3rd Dept 11-27-13

 

,

Defendant Not Prejudiced by Disposal of Damaged Goods (Spoliation)/Lost Profits Recoverable Where Purchase Price Set at Time of Damage

The Second Department affirmed several rulings made by the trial court in the damages aspect of a trial in which plaintiff alleged defendant’s malfunctioning sprinkler system ruined over $1 million worth of clothing stored in the building. The fact that plaintiff disposed of some of the damaged clothes and sold the remainder for salvage (spoliation) did not prejudice the defendant. And, the fact that a purchase price for some of the goods had already been set at the time of the loss allowed recovery for lost profits because the loss was not speculative:

The Supreme Court providently exercised its discretion in denying that branch of the defendant’s motion which was pursuant to CPLR 3126 to preclude the plaintiff from offering at trial any evidence of damages based upon spoliation of evidence. The defendant failed to establish that it was severely prejudiced by the disposal and sale of the damaged goods, fatally compromising its ability to mount a defense and necessitating such relief as a matter of fundamental fairness… . * * *

“Generally, where property is damaged but not destroyed, the measure of damages is the difference between the market value before the damage and the market value afterwards” … . The market value of a merchant’s goods is the price at which they could be replaced in the market, not the retail price at which they could be sold … . This is because allowing recovery of the retail value of damaged goods “would in effect overcompensate the merchant by allowing recovery of unearned profits” (2-248 Warren’s Negligence in New York Courts § 248.01[3][b] [2013]).

Here, however, the plaintiff was not holding the goods in stock in anticipation of trying to sell them at retail for “uncertain and indefinite profits which the plaintiff might have made” from their sale … . Rather, the goods were already under contract for a specified price and awaiting delivery. “[W]here . . . a loss of profits is the natural and probable consequence of the [defendant’s negligence], and their amount is shown with reasonable or sufficient certainty, there may be a recovery” … .  Ever Win Inc v 1-10 Indus Assoc, 2013 NY Slip Op 07933, 2nd Dept 11-27-13

 

, ,

Condominium Owners Stated a Cause of Action Based Upon Third-Party-Beneficiary Status Re: a Contract Between the Village and an Engineer Hired to Inspect the Condominiums/The Contract Cause of Action Precluded the Professional Malpractice Cause of Action

The Second Department determined that a cause of action based upon the theory that condominium owners were third-party beneficiaries of a contract between a village and an engineer hired to inspect the condominiums should not have been dismissed.  It was alleged that the engineer approved the buildings (leading to the issuance of certificates of occupancy by the village) despite defects, including the absence of firewalls. Because a contract-based theory had been properly alleged, the related professional malpractice cause of action, sounding in negligence, should have been dismissed:

In determining third-party beneficiary status it is permissible for the court to look at the surrounding circumstances as well as the agreement . . . Moreover, it is well settled that the obligation to perform to the third party beneficiary need not be expressly stated in the contract” … . Here, the plaintiffs submitted an affidavit from the Village Attorney attesting that the Village engaged the defendant to perform the subject inspections for the benefit of the purchasers of the subject condominiums … . Moreover, “the identity of a third-party beneficiary need not be set forth in the contract or, for that matter, even be known as of the time of its execution” … .

The plaintiffs asserted in the complaint that the defendant “negligently performed inspection services relative to the homes in [Encore I] and [Encore II],” in that, inter alia, the defendant “fail[ed] to detect the existence of defects in the homes and appurtenant common areas.” “[M]erely alleging that a party breached a contract because it failed to act with due care will not transform a strict breach of contract claim into a negligence claim” … . This is because “[o]bligations that flow exclusively from a contract must be enforced as contractual duties under a theory of contract law” … . “[A] court enforcing a contractual obligation will ordinarily impose a contractual duty only on the promisor in favor of the promisee and any intended third-party beneficiaries” … . “Thus where a party is merely seeking to enforce its bargain, a tort claim will not lie'” .. . Taking into account the applicable factors, including “the nature of the injury, the manner in which the injury occurred and the resulting harm” … , it is clear that the plaintiffs, as third-party beneficiaries, are seeking enforcement of the defendant’s promise to properly inspect the construction of the subject homes. Thus, the only claim the plaintiffs have alleged against the defendant is one sounding in contract, and they have failed to state a cause of action sounding in tort. Accordingly, the Supreme Court properly directed dismissal of the second cause of action pursuant to CPLR 3211(a)(7). Encore Lake Grove Homeowners Assn Inc v Cashin Assoc PC, 2013 NY Slip Op 07932, Second Dept 11-27-13

 

,

“Rent Paid In Advance” Lease Enforced/Insufficient Proof of Oral Modification

In a full-fledged opinion by Judge Read, the Court of Appeals determined the Appellate Division correctly held the tenant was obligated to pay an annual rent in advance and the proof was insufficient to demonstrate any contrary oral modification of the lease.  The Court explained the “rent paid in advance” concept and the criteria for oral modification in the face of a clause prohibiting it:

Under the common law, rent is consideration for the right of use and possession of the leased property that a landlord does not earn until the end of the rental period (…1 Friedman & Randolph, Friedman on Leases § 5:1.1 [5th ed 2013]).  This presumption may be altered, however, by the express terms of the parties’ lease such that rent is to be paid at the beginning of the rental period rather than the end (…1 Robert Dolan, Rasch’s Landlord and Tenant § 12:23 [4th ed 1998]; 1 Friedman & Randolph § 5:1.1). When a lease sets a due date for rent, that date is the date on which the tenant’s debt accrues (see 1 Friedman & Randolph § 5:1.1… ).  Rent paid “in advance” (i.e. at the beginning of the term) is unrecoverable if the lease is terminated before the completion of the term, unless the language of the lease directs otherwise … * * *

When the parties dispute whether an oral agreement has been formed, it is the conduct of the party advocating for the oral agreement that is “determinative,” although the conduct of both parties may be relevant … .  This is because the equity doctrine is designed to prevent a party from inducing full or partial performance from another and then claiming the sanctuary of the Statute of Frauds or section 15-301 when suit is brought … .  Eujoy Realty Corp v Van Wagner Communications LLC, 179, CtApp 11-26-13

 

,

No Legal Duty Owed Independent of Contract—Negligence Cause of Action Dismissed

In the context of the dismissal of a tort action against Ferguson Electric Service Company after a building fire, the Fourth Department explained when a contractual relationship can give rise to an action in tort:

“It is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated . . . This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract” … .  Plaintiffs cannot maintain their tort cause of action because Ferguson … owed no legal duty that is independent of the contract … .  Moreover, “a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party…”… . Niagara Foods, Inc…v Ferguson Electric Service Company, Inc…, 1044, 4th Dept 11-15-13

 

,

Contractor May Be Liable to Noncontracting Third Party If Area Made Less Safe by Contractor’s Work

The Fourth Department reinstated a claim for contribution by the owner of a parking lot (Piedmont) against the contractor (Bach) hired to raze structures and fill in all holes.  Plaintiff was injured when his foot fell through a hole into a hidden vault below:

We conclude that Bach met its initial burden on its motion with respect to the claim for contribution by establishing its entitlement to judgment as a matter of law dismissing that claim … .  Specifically, Bach established as a matter of law “that the injured plaintiff was not a party to [the] contract . . . and that it thus owed no duty of care to the injured plaintiff” … .  In opposition, however, Piedmont raised triable issues of fact to defeat that part of the motion.  Although plaintiff was a noncontracting third party with respect to the construction contract between Bach and Piedmont, Bach may still be liable if, “in failing to exercise reasonable care in the performance of its duties, [it] ‘launche[d] a force or instrument of harm’ ” … , or otherwise made the area “less safe than before the construction project began” … .  Here, there are issues of fact whether Bach negligently filled in the vault only partially, and concealed its existence, thereby creating a force or instrument of harm or otherwise making the area less safe than before the demolition project began … . Paro v Piedmont Land and Cattle, LLC…, 1189, 4th Dept 11-15-13

 

, ,

Lease; Services Agreement Did Not Allow Building Owner to Recover for Condition of Property

In a full-fledged opinion by Judge Smith, the Court of Appeals determined that plaintiffs, the building owners, could not recover damages related to the condition of the property upon the termination of the lease.  The property was used as a homeless shelter.  The City of New York entered into a Services Agreement with The Salvation Army to run the shelter.  The Salvation Army leased the property from the property owners. The City, in the Services Agreement, was required to pay The Salvation Army’s obligations to the property owners under the lease. The Court wrote:

The Lease is clear that, as a general proposition, The Salvation Army is not obliged to pay more to plaintiffs than it can recover from the City, and it is equally clear that The Salvation Army must do what it reasonably can to recover what the City owes it.  If The Salvation Army breached its duty to use commercially reasonable efforts to enforce a City obligation, it could not rely on the City’s non-payment of that obligation to defeat plaintiffs’ claim.  …[H]owever, … the complaint fails to allege any commercially reasonable step that The Salvation Army should have taken to recover money from the City. Plaintiffs do not identify any provision of the Services Agreement under which the City owes money to The Salvation Army that The Salvation Army failed to collect.  JFK Holding Company LLC v City of New York…, 196, CtApp 11-14-13

 

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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy