Wheaton v. East End Commons Assocs., LLC, 50 A.D.3d 675 (N.Y. App. Div. 2d Dep't 2008). · Go Syfert
Wheaton v. East End Commons Assocs., LLC, 50 A.D.3d 675 (N.Y. App. Div. 2d Dep't 2008). Cases Citing This Book View Copy Cite
53 citation events (53 in the last 25 years) across 1 distinct court.
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At page 677 Contractor liability for third-party injuries from snow removal services27 citing caseshave any obligation to maintain that area (see Kaufman v Silver, 90 NY2d 204, 207 [1997]; Morgan v Chong Kwan Jun, 30 AD3d 386, 388 [2006]; DePompo v Waldbaums…opening of page *677 (no citing court says what it cites this page for) · 20 listed here
  • Scott v. Avalonbay Communities, Inc., 125 A.D.3d 839 (N.Y. App. Div. 2d Dep't 2015).published
    “As a general rule, a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties” (Diaz v Port Auth. of NY & NJ, 120 AD3d 611, 611 [2014]; see Ru…
  • Diaz v. Port Auth. of NY & NJ, 120 A.D.3d 611 (N.Y. App. Div. 2d Dep't 2014).published
    As a general rule, a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties (see Rudloff v Woodland Pond Condominium Assn., 109 AD3d 810, 810…
  • Rudloff v. Woodland Pond Condo. Ass'n, 109 A.D.3d 810 (N.Y. App. Div. 2d Dep't 2013).published 2 cites
    As a general rule, a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties (see Lubell v Stonegate at Ardsley Home Owners Assn., Inc., 79 AD…
  • Aiello v. Burns Int'l Sec. Servs. Corp., 110 A.D.3d 234 (N.Y. App. Div. 1st Dep't 2013).published 2 cites
    The second Espinal exception, detrimental reliance, is not applicable because, as Burns correctly points out, this exception requires that the noncontracting party has actual knowledge of the contract between the contracting parties (see F…
  • Baker v. Buckpitt, 99 A.D.3d 1097 (N.Y. App. Div. 2012).published 2 cites
    Generally speaking, a limited contractual agreement to provide snow removal services — standing alone — will not give rise to tort liability in favor of a noncontracting injured third party (see Lubell v Stonegate at Ardsley Home Owners As…
  • Benavides v. 30 Brooklyn, LLC, 96 A.D.3d 889 (N.Y. App. Div. 2d Dep't 2012).published 2 cites
    An exception to the general rule exists where the contractor launches an instrument of harm or creates or exacerbates a hazardous condition (Wheaton v East End Commons Assoc., LLC, 50 AD3d 675, 677 [2008]; see Espinal v Melville Snow Contr…
  • Gushin v. Whispering Hills Condo. I, 96 A.D.3d 721 (N.Y. App. Div. 2d Dep't 2012).published 2 cites
    As a general rule, a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties (see Wheaton v East End Commons Assoc., LLC, 50 AD3d 675, 677 [20…
  • Knox v. Sodexho Am., LLC, 93 A.D.3d 642 (N.Y. App. Div. 2d Dep't 2012).published
    As a general rule, a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties (see Lubell v Stonegate at Ardsley Home Owners Assn., Inc., 79 AD…
  • Byrnes v. St. Luke's Cornwall Hosp., 87 A.D.3d 519 (N.Y. App. Div. 2011).published
    Triable issues of fact exist as to whether it failed to salt or sand the parking lot after plowing was completed, as required under its snow removal contract with the hospital, and, if so, whether its failure to do so was the sole cause of…
  • Weiss v. Fire Extinguisher Servs. Co., 83 A.D.3d 822 (N.Y. App. Div. 2d Dep't 2011).published
    Although FES demonstrated its prima facie entitlement to judgment as a matter of law by establishing that the plaintiff was not a party to its contract to install and maintain certain fire extinguishers on the premises and that it therefor…
Show 10 more citing cases
  • Lubell v. Stonegate at Ardsley Home Owners Ass'n, 79 A.D.3d 1102 (N.Y. App. Div. 2d Dep't 2010).published 2 cites
    “A limited contractual undertaking to provide snow removal services generally does not render the contractor liable in tort for the personal injuries of third parties” (Wheaton v East End Commons Assoc., LLC, 50 AD3d 675, 677 [2008]).
  • Weeman v. Rouse Si Shopping Ctr., LLC, 79 A.D.3d 855 (N.Y. App. Div. 2d Dep't 2010).published
    Furthermore, in response to ABCO’s prima facie showing that it assumed no duty to the plaintiff by virtue of its limited contract with Rouse SI to sweep the parking lot, the plaintiff failed to raise a triable issue of fact as to the exist…
  • Foster v. Herbert Slepoy Corp., 76 A.D.2d 210 (N.Y. App. Div. 2d Dep't 2010).published 2 cites
    Contrary to the contentions of the owners and the plaintiff, Clancy demonstrated his prima facie entitlement to judgment as a matter of law under the circumstances of this case merely by coming forward with proof that the plaintiff was not…
  • Wilson v. Hyatt Corp., 72 A.D.3d 939 (N.Y. App. Div. 2d Dep't 2010).published
    Under these circumstances, the plaintiff failed to raise a triable issue of fact as to whether Harvard assumed a duty of care toward her by virtue of its having launched a force or instrumentality of harm at the premises (see Georgotas v L…
  • Conte v. Servisair/ Globeground, 63 A.D.3d 981 (N.Y. App. Div. 2d Dep't 2009).published
    The defendant made a prima facie showing that none of the situations in which liability may be imposed, as described in Espinal , were applicable here (see Fung v Japan Airlines Co., Ltd., 9 NY3d 351, 361 [2007]; Espinal v Melville Snow Co…
  • Georgotas v. Laro Maint. Corp., 55 A.D.3d 666 (N.Y. App. Div. 2d Dep't 2008).published
    A contractor or subcontractor’s limited contractual undertaking to provide snow removal services generally does not give rise to a duty of care to persons not a party to the contract, absent evidence that the contractor or subcontractor as…
  • Sarisohn v. Plaza Realty Servs., Inc., 109 A.D.3d 654 (N.Y. App. Div. 2d Dep't 2013).published 2 cites
    “As a general rule, a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties” (Gushin v Whispering Hills Condominium I, 96 AD3d 721, 722 [201…
  • Ferguson v. TEMCO, 100 A.D.3d 686 (N.Y. App. Div. 2d Dep't 2012).published 2 cites
    An exception to the general rule exists where the contractor “launches an instrument of harm or creates or exacerbates a hazardous condition” (Benavides v 30 Brooklyn, LLC, 96 AD3d at 890 ; see Wheaton v East End Commons Assoc., LLC, 50 AD…
  • Henriquez v. Inserra Supermarkets, Inc., 89 A.D.3d 899 (N.Y. App. Div. 2d Dep't 2011).published
    Ctr., 64 NY2d 851, 853 [1985]) “merely by coming forward with proof that the plaintiff was not a party to [the] snow removal contract and that [MCM Paving] therefore owed no duty of care to the plaintiff’ (Foster v Herbert Slepoy Corp., 76…
  • Kaehler-Hendrix v. Johnson Controls, Inc., 58 A.D.3d 604 (N.Y. App. Div. 2d Dep't 2009).published
    Nor is there any evidence that the plaintiff detrimentally relied on either Snow or the Lewis defendants’ performance of their duties or that the actions of those defendants “launched a force or instrument of harm” (Abbattista v King’s Gra…
At page 676 Grant of summary judgment on various motions4 citing casesdated September 5, 2006, as denied that branch of its motion which was for summary judgment dismissing the cross claim for common-law indemnification insofar…opening of page *676 (no citing court says what it cites this page for)
  • Beltran v. Waterfront Hous. Dev. Fund Corp., 201 A.D.3d 1315 (N.Y. App. Div. 4th Dep't 2022).published
    Assoc., LLC , 86 AD3d 938, 939 [4th Dept 2011]; Wheaton v East End Commons Assoc., LLC , 50 AD3d 675, 676 [2d Dept 2008]; see generally CPLR 5511).
  • Calabro v. Harbour at Blue Point Home Owners Assn., Inc., 120 A.D.3d 462 (N.Y. App. Div. 2d Dep't 2014).published
    As a general rule, liability for a dangerous or defective condi *463 tion on real property must be predicated upon ownership, occupancy, control, or special use of that property (see Suero-Sosa v Cardona, 112 AD3d 706 [2013]; Wheaton v Eas…
  • Lattimore v. First Mineola Co., 60 A.D.3d 639 (N.Y. App. Div. 2d Dep't 2009).published
    The building defendants also submitted evidence that the defendant JDHJ Co., LLC, had no connection to the subject property at the time of this occurrence, and that evidence was not controverted by the plaintiffs (see Wheaton v East End Co…
  • Hahn v. Wilhelm, 54 A.D.3d 896 (N.Y. App. Div. 2d Dep't 2008).published
    The Supreme Court properly awarded summary judgment to Xavier’s Restaurant on the alternative ground that it had no contractual obligation to maintain and repair the sidewalk where the accident occurred, and did not occupy or control this…
At page 678 Determining duty of care for contribution and indemnification3 citing cases[2007]; Zabbia v Westwood, LLC, 18 AD3d 542, 544 [2005]; cf. Keese v Imperial Gardens Assoc., LLC, 36 AD3d 666 [2007]). Kings Park also established its prima…opening of page *678 (no citing court says what it cites this page for) · 2 listed here
  • Morris v. Home Depot USA, 152 A.D.3d 669 (N.Y. App. Div. 2d Dep't 2017).published
    J & J established its prima facie entitlement to judgment as a matter of law dismissing the third-party cause of action for contribution by demonstrating that it did not owe a duty of reasonable care independent of its contractual obligati…
  • Proulx v. Entergy Nuclear Indian Point 2, LLC, 98 A.D.3d 492 (N.Y. App. Div. 2d Dep't 2012).published 2 cites
    Furthermore, in opposition to the prima facie showing by Bartlett that it was entitled to summary judgment dismissing the contribution claim, the Entergy defendants failed to raise a triable issue of fact as to whether Bartlett owed the En…
Retrieving the full opinion text from the archive…
Sherrylee S. Wheaton
v.
East End Commons Associates, LLC, Also Known as Feil Organization, and Kings Park Contracting, Inc., Appellant-Respondent
Appellate Division of the Supreme Court of the State of New York.
Apr 1, 2008.
Published opinion
50 A.D.3d 675
Cited by 40 opinions  |  Published

In an action to recover damages for personal injuries, etc., the defendant Kings Park Contracting, Inc., appeals from so much of an order of the Supreme Court, Suffolk County (R. Doyle, J.),[*676] dated September 5, 2006, as denied that branch of its motion which was for summary judgment dismissing the cross claim for common-law indemnification insofar as asserted by the defendant East End Commons Associates, LLC, also known as the Feil Organization, the plaintiffs cross-appeal, as limited by their brief, from so much of the same order as granted that branch of the motion of the defendant Kings Park Contracting, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it and granted that branch of the cross motion of the defendants East End Commons Associates, LLC, also known as the Feil Organization, Broadwall Management Corp., and BJ’s Wholesale Club, Inc., which was for summary judgment dismissing the complaint insofar as asserted against the defendants Broadwall Management Corp. and BJ’s Wholesale Club, Inc., and the defendants East End Commons Associates, LLC, also known as the Feil Organization, Broadwall Management Corp., and BJ’s Wholesale Club, Inc., separately cross-appeal, as limited by their brief, from so much of the same order as denied that branch of their cross motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant East End Commons Associates, LLC, also known as the Feil Organization and granted that branch of the motion of the defendant Kings Park Contracting, Inc., which was for summary judgment dismissing the cross claim for contribution insofar as asserted by the defendant East End Commons Associates LLC, also known as the Feil Organization.

Ordered that the cross appeals by the defendants Broadwall Management Corp. and BJ’s Wholesale Club, Inc., are dismissed, without costs or disbursements, as those defendants are not aggrieved by those portions of the order cross-appealed from (see CPLR 5511); and it is further,

Ordered that the order is affirmed insofar as appealed from by the defendant Kings Park Contracting, Inc., and cross-appealed from by the plaintiff and the defendant East End Commons Associates, LLC, also known as the Feil Organization, without costs or disbursements.

Contrary to the plaintiffs’ contention, the complaint was properly dismissed insofar as asserted against the defendants Broadwall Management Corp. (hereinafter Broadwall) and BJ’s Wholesale Club, Inc. (hereinafter BJ’s). Broadwall demonstrated, prima facie, that it was not the managing agent for the defendant East End Commons Associates, LLC, also known as the Feil Organization (hereinafter East End). BJ’s demonstrated, prima facie, that it did not own, occupy, or control the parking lot, or put the parking lot to a special use, nor did it[*677] have any obligation to maintain that area (see Kaufman v Silver, 90 NY2d 204, 207 [1997]; Morgan v Chong Kwan Jun, 30 AD3d 386, 388 [2006]; DePompo v Waldbaums Supermarket, 291 AD2d 528 [2002]). In opposition, the plaintiffs failed to raise a triable issue of fact with respect to the liability of either of those defendants.

On its cross motion for summary judgment, East End bore the initial burden of establishing its prima facie entitlement to judgment as a matter of law by affirmatively demonstrating the merit of its defense, rather than by pointing to gaps in the plaintiffs’ evidence (see Mondello v DiStefano, 16 AD3d 637, 638 [2005]). East End failed to meet this burden, since it submitted no evidence showing that the allegedly dangerous condition existed for an insufficient length of time for it to have discovered and remedied it (see Pearson v Parkside Ltd. Liab. Co., 27 AD3d 539 [2006]; Amidon v Yankee Trails, Inc.,11 AD3d 835 [2005]; Strange v Colgate Design Corp., 6 AD3d 422 [2004]; McCombs v Related Mgt. Co., 290 AD2d 681 [2002]). As a result, the burden did not shift to the plaintiffs to raise a triable issue of fact with respect to East End’s constructive notice of the allegedly dangerous condition (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), and the Supreme Court properly denied that branch of the cross motion which was for summary judgment dismissing the complaint insofar as asserted against East End.

The Supreme Court also correctly determined that the defendant Kings Park Contracting, Inc. (hereinafter Kings Park), established its prima facie entitlement to summary judgment dismissing the complaint insofar as asserted against it. A limited contractual undertaking to provide snow removal services generally does not render the contractor liable in tort for the personal injuries of third parties (see Espinal v Melville Snow Contrs., 98 NY2d 136, 141-142 [2002]; Baratta v Home Depot USA, 303 AD2d 434, 435-436 [2003]). In opposition, the plaintiffs failed to raise a triable issue of fact as to the injured plaintiffs alleged detrimental reliance on Kings Park’s continued performance of its contractual obligations, since the injured plaintiff testified at her deposition that she had no knowledge of the snow removal contract (see Espinal v Melville Snow Contrs., 98 NY2d at 142; Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220 [1990]; Gor v High View Estates Owners Corp., 17 AD3d 316, 317 [2005]; Bugiada v Iko, 274 AD2d 368, 369 [2000]), nor did the plaintiffs present any evidence that Kings Park launched a force or instrument of harm which created or exacerbated the allegedly hazardous condition (see Castro v Maple Run Condominium Assn., 41 AD3d 412, 413-414[*678] [2007]; Zabbia v Westwood, LLC, 18 AD3d 542, 544 [2005]; cf. Keese v Imperial Gardens Assoc., LLC, 36 AD3d 666 [2007]).

Kings Park also established its prima facie entitlement to summaiy judgment dismissing the cross claim for contribution insofar as asserted by East End. In opposition, East End failed to raise a triable issue of fact as to whether Kings Park owed it a duty of reasonable care independent of Kings Park’s contractual obligations (see Roach v AVR Realty Co., LLC, 41 AD3d 821, 824 [2007]; Baratta v Home Depot USA, 303 AD2d at 435; Phillips v Young Men’s Christian Assn., 215 AD2d 825, 827 [1995]). As a result, the Supreme Court properly granted that branch of Kings Park’s motion which was for summary judgment dismissing the cross claim for contribution insofar as asserted by East End.

The Supreme Court correctly denied that branch of Kings Park’s motion which was for summary judgment dismissing the cross claim for common-law indemnification insofar as asserted by East End. Kings Park failed to establish its entitlement to judgment as a matter of law dismissing this cross claim. “[S]ince there are questions of fact as to whether the accident resulted from [Kings Park’s] alleged failure to fulfill its obligations pursuant to the terms of the snow removal contract” (Richter v Hunter’s Run Homeowners Assn., Inc., 14 AD3d 601, 602 [2005]; see Mitchell v Fiorini Landscape, 284 AD2d 313, 314 [2001]), the cross claim for common-law indemnification cannot be resolved as a matter of law (see Vilorio v Suffolk Y Jewish Community Ctr., Inc., 33 AD3d 696, 697 [2006]; Baratta v Home Depot USA, 303 AD2d at 435). Spolzino, J.P., Santucci, Angiolillo and Balkin, JJ., concur.