Rubistello v. Bartolini Landscaping, Inc., 87 A.D.3d 1003 (N.Y. App. Div. 2011). · Go Syfert
Rubistello v. Bartolini Landscaping, Inc., 87 A.D.3d 1003 (N.Y. App. Div. 2011). Cases Citing This Book View Copy Cite
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25 citation events (25 in the last 25 years) across 1 distinct court.
Treatment trajectory · 2011 → 2026 · click a year to view as-of
2011 2018 2026
Top citers, strongest first. 13 distinct citers. How cited ↗
discussed Cited as authority (rule) Vumbico v. Estate of Rose H. Wiltse
N.Y. App. Div. · 2017 · confidence medium
On a summary judgment motion by a defendant, the defendant does not meet its initial burden by merely pointing to gaps in the plaintiff’s case; rather, it must affirmatively demonstrate the merit of its claim or defense (see Marielisa R. v Wolman Rink Operations, LLC, 94 AD3d 963, 964 [2012]; Rubistello v Bartolini Landscaping, Inc., 87 AD3d 1003, 1005 [2011]; Shafi v Motta, 73 AD3d 729, 730 [2010]; Pace v International Bus.
cited Cited as authority (rule) Levine v. G.F. Holding, Inc.
N.Y. App. Div. · 2016 · confidence medium
Auth., 91 AD3d 422 [2012]; Rubistello v Bartolini Landscaping, Inc., 87 AD3d 1003, 1005 [2011]; George v Marshalls of MA, Inc., 61 AD3d at 928 ).
discussed Cited as authority (rule) Billera v. Merritt Construction, Inc.
N.Y. App. Div. · 2016 · confidence medium
Merritt submitted the affidavit of a licensed engineer in support of its motion, but this expert was merely able to opine that it was impossible to determine what caused the water main break, and that “[t]he fact that construction was ongoing nearby at the time of the failure is only one possible contributing factor among many.” Considering the record evidence as to the work that Merritt had performed at the site immediately prior to the appearance of any leak, and this expert’s inability to rule out Merritt’s actions as a cause of the leak, we find that Merritt failed to meet its prim…
discussed Cited as authority (rule) Rothstein v. Temple Beth Elohim
N.Y. App. Div. · 2015 · confidence medium
Exceptions to this general rule exist “(1) where the contracting party, in failing to exercise reasonable care in the performance of [its] 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” (Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002] [citations and internal quotation marks omitted]). “[T]he prima facie showing which a defendant must make on a motion…
discussed Cited as authority (rule) Guadalupi v. Morelli
N.Y. App. Div. · 2015 · confidence medium
Here, the third-party defendants established their prima facie entitlement to judgment as a matter of law dismissing the third-party cause of action for contribution by presenting evidence demonstrating that they exercised reasonable care in the performance of their duties and did not launch an instrument of harm or create or exacerbate a hazardous condition (see Rubistello v Bartolini Landscaping, Inc., 87 AD3d 1003, 1005 [2011]; Miller v Village of E.
discussed Cited as authority (rule) Collado v. Jiacono
N.Y. App. Div. · 2015 · confidence medium
It must affirmatively demonstrate the merit of its claim or defense (see Marielisa R. v Wolman Rink Operations, LLC, 94 AD3d 963 [2012]; Rubistello v Bartolini Landscaping, Inc., 87 AD3d 1003, 1005 [2011]; Shafi v Motta, 73 AD3d 729, 730 [2010]; Pace v International Bus.
discussed Cited as authority (rule) Griffith v. Jk Chopra Holding
N.Y. App. Div. · 2013 · confidence medium
Further, the defendants, by merely pointing to gaps in the plaintiffs proof, rather than affirmatively demonstrating the merit of their defense, failed to carry their burden as movants seeking summary judgment on the issue of whether the condition complained of did in fact constitute a defect (see Green v Albemarle, LLC, 107 AD3d at 948 ; Proulx v Entergy Nuclear Indian Point 2, LLC, 98 AD3d 492 [2012]; Delaney v Town Sports Intl., 88 AD3d 635 [2011]; Gestetner v Teitelbaum, 52 AD3d 778 [2008]; see also Marielisa R. v Wolman Rink Operations, LLC, 94 AD3d 963 [2012]; Rubistello v Bartolini Land…
discussed Cited as authority (rule) Griffith v. Jk Chopra Holding
N.Y. App. Div. · 2013 · confidence medium
Further, the defendants, by merely pointing to gaps in the plaintiffs proof, rather than affirmatively demonstrating the merit of their defense, failed to carry their burden as movants seeking summary judgment on the issue of whether the condition complained of did in fact constitute a defect (see Green v Albemarle, LLC, 107 AD3d at 948 ; Proulx v Entergy Nuclear Indian Point 2, LLC, 98 AD3d 492 [2012]; Delaney v Town Sports Intl., 88 AD3d 635 [2011]; Gestetner v Teitelbaum, 52 AD3d 778 [2008]; see also Marielisa R. v Wolman Rink Operations, LLC, 94 AD3d 963 [2012]; Rubistello v Bartolini Land…
discussed Cited as authority (rule) Santos v. Deanco Services, Inc. (2×)
N.Y. App. Div. · 2013 · confidence medium
“Viewed in the light most favorable to the plaintiff” (Rubistello v Bartolini Landscaping, Inc., 87 AD3d 1003, 1004 [2011]), the pleadings asserted, inter alia, that Deanco was negligent in causing the plaintiff to detrimentally rely upon the purported safety of the subject area, and, in attempting to clear the area, exacerbated the icy conditions, thereby launching a force or instrument of harm.
discussed Cited as authority (rule) Santos v. Deanco Services, Inc. (2×)
N.Y. App. Div. · 2013 · confidence medium
“Viewed in the light most favorable to the plaintiff” (Rubistello v Bartolini Landscaping, Inc., 87 AD3d 1003, 1004 [2011]), the pleadings asserted, inter alia, that Deanco was negligent in causing the plaintiff to detrimentally rely upon the purported safety of the subject area, and, in attempting to clear the area, exacerbated the icy conditions, thereby launching a force or instrument of harm.
discussed Cited as authority (rule) Marielisa R. v. Wolman Rink Operations, LLC
N.Y. App. Div. · 2012 · confidence medium
Furthermore, the defendant’s attempt to meet its prima facie burden by pointing to gaps in the plaintiff’s proof was properly rejected by the Supreme Court (see Rubistello v Bartolini Landscaping, Inc., 87 AD3d 1003, 1005 [2011]; Shafi v Motta, 73 AD3d 729, 730 [2010]; Doe v Orange-Ulster Bd. of Coop.
discussed Cited as authority (rule) Shaw v. Bluepers Family Billiards
N.Y. App. Div. · 2012 · confidence medium
Since the pleadings contained allegations which would establish that this Espinal exception applied, in order to establish its prima facie entitlement to judgment as a matter of law, Upstate was required to eliminate all triable issues of fact with regard thereto (see Rubistello v Bartolini Landscaping, Inc., 87 AD3d 1003, 1004 [2011]; Foster v Herbert Slepoy Corp., 76 AD3d at 214).
discussed Cited as authority (rule) Lopez v. New York Life Insurance
N.Y. App. Div. · 2011 · confidence medium
Because plaintiffs pleadings did not allege the existence of any of the Espinal exceptions, Collins demonstrated its prima facie entitlement to judgment as a matter of law by coming forward with proof that plaintiff was not a party to its contract (cf. Rubistello v Bartolini Landscaping, 87 AD3d 1003, 1004 [2011]; see also Foster v Herbert Slepoy Corp., 76 AD3d 210 , 214 [2010]).
Retrieving the full opinion text from the archive…
Karen Rubistello
v.
Bartolini Landscaping, Inc.
Appellate Division of the Supreme Court of the State of New York.
Sep 13, 2011.
87 A.D.3d 1003
Cited by 22 opinions  |  Published

On the morning of April 8, 2003, the plaintiff arrived at Philips Research North America (hereinafter Philips), located on Scarborough Road in Briarcliff Manor, where she worked. The plaintiff parked her car and observed that the parking lot was covered in ice. She exited her car, took approximately four steps, and allegedly slipped and fell, sustaining injuries. The plaintiff commenced this action against the defendant, the landscaping company which had agreed to perform snow removal services at the subject location. Pursuant to its agreement with Philips, the defendant would come to the subject location to perform snow removal services only when notified by a Philips security guard that such services were requested. The defendant moved for summary judgment dismissing the complaint, asserting that its agreement with Philips was not[*1004] comprehensive and exclusive, but rather, Philips retained the duty to maintain the property in reasonably safe condition, as demonstrated by its obligation to request snow removal services from the defendant when desired. The defendant further asserted that it did not launch a force or instrument of harm as a result of a failure to exercise reasonable care in the performance of its duties. In this regard, the defendant asserted that it did not, in fact, perform snow removal services on the date in question. Moreover, the defendant asserted that, even if it did, there was no evidence to support the conclusion that it failed to exercise reasonable care in doing so, so that it could not have launched a force or instrument of harm. The Supreme Court denied the defendant’s motion. We affirm.

“In Espinal v Melville Snow Contrs. (98 NY2d 136, 138 [2002]), the Court of Appeals held that ‘a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party’ ” (Foster v Herbert Slepoy Corp., 76 AD3d 210, 213 [2010], quoting Espinal v Melville Snow Contrs., 98 NY2d at 138). “However, the Court identified three exceptions to the general rule, pursuant to which ‘a party who enters into a contract to render services may be said to have assumed a duty of care — and thus be potentially liable in tort — to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launchefs] 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’ ” (Foster v Herbert Slepoy Corp., 76 AD3d at 213, quoting Espinal v Melville Snow Contrs., 98 NY2d at 140; see Church v Callanan Indus., 99 NY2d 104, 111-112 [2002]; Folkl v McCarey Landscaping, Inc., 66 AD3d 825, 825 [2009]; Crosthwaite v Acadia Realty Trust, 62 AD3d 823, 824 [2009]).

Here, the Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint. Viewed in the light most favorable to the plaintiff (see Pearson v Dix McBride, LLC, 63 AD3d 895 [2009]), the pleadings asserted, among other things, that the defendant failed to exercise reasonable care in the performance of its duties, thereby launching a force or instrument of harm, and that the defendant entirely displaced Philips’ duty to maintain the parking lot in reasonably safe condition. Because the pleadings contained allegations which would establish that these Espinal exceptions applied, to establish its prima facie entitlement to summary judgment, the defendant was required to eliminate all triable issues of fact[*1005] with regard thereto (see generally Foster v Herbert Slepoy Corp., 76 AD3d at 214).

The defendant succeeded in eliminating all triable issues of fact as to whether, by operation of its agreement with Philips, it entirely displaced Philips’ duty to maintain the parking lot in reasonably safe condition. In opposition, the plaintiff failed to raise a triable issue of fact with regard to this issue.

The defendant failed to satisfy its initial burden of demonstrating that it did not launch a force or instrument of harm as a result of a failure to exercise reasonable care in the performance of snow removal duties. Again, the defendant’s position is that it did not perform snow removal services on the date in question. However, a triable issue of fact remains as to whether the defendant performed snow removal at Philips’ parking lot on the dates in question. The defendant further argues that, even assuming it did perform snow removal services, there is no evidence that it failed to exercise reasonable care in doing so or that it launched a force or instrument of harm. The defendant, however, came forward with no evidence whatsoever concerning the performance of snow removal services. On its motion for summary judgment, the defendant bore the burden of “ ‘affirmatively demonstrating] the merit of its claim or defense’ ” (Doe v Orange-Ulster Bd. of Coop. Educ. Servs., 4 AD3d 387, 389 [2004], quoting George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615 [1992]) that it did not launch a force or instrument of harm as a result of a failure to exercise reasonable care in the performance of snow removal services. The defendant could not satisfy its burden by pointing to gaps in the plaintiff’s proof (see Doe v Orange-Ulster Bd. of Coop. Educ. Servs., 4 AD3d at 388-389; George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d at 615). Having failed to come forward with evidence to negate this Espinal exception, the defendant failed to establish its prima facie entitlement to judgment as a matter of law on this issue, and the Supreme Court properly denied its motion.

The defendant’s remaining contention is improperly raised for the first time on appeal and, accordingly, is not properly before this Court. Angiolillo, J.P, Dickerson, Hall and Roman, JJ., concur.