first Espinal exception in New York

2023Moreover, even assuming, arguendo, that plaintiffs' allegations in the pleadings are sufficient to require BRH to negate the possible applicability of the first Espinal exception in order to establish its prima facie entitlement to summary judgment ( see Lingenfelter v Delevan Terrace Assoc. , 149 AD3d 1522 , 1523 [4th Dept 2017]), we conclude that BRH met its initial burden of establishing that it did not launch a force or instrument of harm by negligently creating or exacerbating a dangerous condition ( see generally Espinal , 98 NY2d at 142-143 ).

2020Timoney asserted that none of the Espinal exceptions to that general rule applies ( see generally Espinal v Melville Snow [*2]Contrs. , 98 NY2d 136, 140 [2002]), but it is well settled that a contractor who creates or exacerbates a hazardous snow condition by plowing may be held liable to a third party under the first Espinal exception, for launching a force or instrument of harm ( see Chamberlain v Church of the Holy Family , 160 AD3d 1399 , 1403 [4th Dept 2018]; Meyers-Kraft v Keem , 64 AD3d 1172, 1173-1174 [4th Dept 2009]; Rak , 38 AD3d at 1241 ).

2018Further, by their bill of particulars, plaintiffs alleged that defendants "fail[ed] to remove the snow and ice" and "creat[ed] the buildup of ice, dirt and frozen slush, which had accumulated on the ground." Further, plaintiffs alleged that the condition that caused Hutchings' injury was the "slippery and [*2]uneven mixture of compacted snow, ice and dirt, and a generally slippery condition including elevation and depression on the surface, which accumulated on the ground in the rear parking area." We find that Supreme Court properly determined that defendants met their initial burdens by esta

2017Krotz’s submissions, including the contract, the deposition testimony of the property manager for the apartment complex, and the deposition testimony and affidavit of Krotz’s owner, established that Krotz plowed the center driving lane of the parking lot in accordance with its responsibilities under the contract and did not undertake any snow removal operations with respect to the condition between the parking spaces that caused plaintiff’s injury. “[B]y merely plowing the snow, as required by the contract, [Krotz’s] actions could not be said ‘to have created or exacerbated a dangerous conditi

2020Timoney asserted that none of the Espinal exceptions to that general rule applies ( see generally Espinal v Melville Snow [*2]Contrs. , 98 NY2d 136, 140 [2002]), but it is well settled that a contractor who creates or exacerbates a hazardous snow condition by plowing may be held liable to a third party under the first Espinal exception, for launching a force or instrument of harm ( see Chamberlain v Church of the Holy Family , 160 AD3d 1399 , 1403 [4th Dept 2018]; Meyers-Kraft v Keem , 64 AD3d 1172, 1173-1174 [4th Dept 2009]; Rak , 38 AD3d at 1241 ).

2017Krotz’s submissions, including the contract, the deposition testimony of the property manager for the apartment complex, and the deposition testimony and affidavit of Krotz’s owner, established that Krotz plowed the center driving lane of the parking lot in accordance with its responsibilities under the contract and did not undertake any snow removal operations with respect to the condition between the parking spaces that caused plaintiff’s injury. “[B]y merely plowing the snow, as required by the contract, [Krotz’s] actions could not be said ‘to have created or exacerbated a dangerous conditi

2017Even assuming, arguendo, that the allegations in the pleadings are sufficient to require Krotz to negate the possible applicability of the first Espinal exception in establishing its prima facie entitlement to summary judgment (cf. Baker v Buckpitt, 99 AD3d 1097, 1099 [2012]; Sniatecki v Violet Realty, Inc., 98 AD3d 1316, 1320 [2012]; Foster v Herbert Slepoy Corp., 76 AD3d 210 , 214 [2010]), we conclude that Krotz met its initial burden of establishing that it did not launch a force or instrument of harm by creating or exacerbating a dangerous condition (s ee generally Espinal, 98 NY2d at 142-

2017Even assuming, arguendo, that the allegations in the pleadings are sufficient to require Krotz to negate the possible applicability of the first Espinal exception in establishing its prima facie entitlement to summary judgment (cf. Baker v Buckpitt, 99 AD3d 1097, 1099 [2012]; Sniatecki v Violet Realty, Inc., 98 AD3d 1316, 1320 [2012]; Foster v Herbert Slepoy Corp., 76 AD3d 210 , 214 [2010]), we conclude that Krotz met its initial burden of establishing that it did not launch a force or instrument of harm by creating or exacerbating a dangerous condition (s ee generally Espinal, 98 NY2d at 142-

2017Even assuming, arguendo, that the allegations in the pleadings are sufficient to require Krotz to negate the possible applicability of the first Espinal exception in establishing its prima facie entitlement to summary judgment (cf. Baker v Buckpitt, 99 AD3d 1097, 1099 [2012]; Sniatecki v Violet Realty, Inc., 98 AD3d 1316, 1320 [2012]; Foster v Herbert Slepoy Corp., 76 AD3d 210 , 214 [2010]), we conclude that Krotz met its initial burden of establishing that it did not launch a force or instrument of harm by creating or exacerbating a dangerous condition (s ee generally Espinal, 98 NY2d at 142-

2017Even assuming, arguendo, that the allegations in the pleadings are sufficient to require Krotz to negate the possible applicability of the first Espinal exception in establishing its prima facie entitlement to summary judgment (cf. Baker v Buckpitt, 99 AD3d 1097, 1099 [2012]; Sniatecki v Violet Realty, Inc., 98 AD3d 1316, 1320 [2012]; Foster v Herbert Slepoy Corp., 76 AD3d 210 , 214 [2010]), we conclude that Krotz met its initial burden of establishing that it did not launch a force or instrument of harm by creating or exacerbating a dangerous condition (s ee generally Espinal, 98 NY2d at 142-

2024In any event, evidence of defendant's alleged failure to fix the motion sensors is insufficient to raise an issue of fact as to whether defendant launched the instrument of harm that caused her accident ( Skeete v Greyhound Lines, Inc. , 209 AD3d 415 , 416 [1st Dept 2022] ["a defendant who neglects to make the accident site 'safer — as opposed to less safe — than it was before' the defendant came upon the site is not liable pursuant to the Espinal exception"], quoting Church v Callanan Indus. , 99 NY2d 104, 112 [2002]).

2023Thus, as the court properly determined, the first Espinal exception does not apply because BRH's alleged failure to design the stairway with non-slip or abrasive treads and nosings results " 'merely in withholding a benefit . . . where inaction is at most a refusal to become an instrument for good' " ( Church , 99 NY2d at 112 ).

2013The 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 Foster v Herbert Slepoy Corp., 76 AD3d 210 , 215 [2d Dept 2010]; Wheaton v East End Commons Assoc., LLC, 50 AD3d 675, 677 [2d Dept 2008]).

2013The 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 Foster v Herbert Slepoy Corp., 76 AD3d 210 , 215 [2d Dept 2010]; Wheaton v East End Commons Assoc., LLC, 50 AD3d 675, 677 [2d Dept 2008]).

2024Stated another way, the first Espinal exception "does not apply when the breach of contract consists merely in withholding a benefit . . . where inaction is at most a refusal to become an instrument for good" ( Bregaudit , 211 AD3d at 1583-1584 [internal quotation marks omitted]).

2024Thus, " 'a claim that a contractor [created or] exacerbated an existing condition requires some showing that the contractor left the premises in a more dangerous condition than [the contractor] found them' " ( id. at 1584 ).

2024Here, plaintiff pleaded facts in the amended complaint sufficient to allege the application of the first Espinal exception ( see Cavosie v Hussain , 215 AD3d 1080, 1083 [3d Dept 2023]; see also Vassenelli v City of Syracuse , 138 AD3d 1471, 1474 [4th Dept 2016]), and the documentary evidence did not "utterly refute[ ] plaintiff's factual allegations, [thereby failing [*2]to] conclusively establish[ ] a defense as a matter of law" ( Goshen v Mutual Life Ins.

2024Co. of N.Y. , 98 NY2d 314, 326 [2002]).

2024Here, plaintiff pleaded facts in the amended complaint sufficient to allege the application of the first Espinal exception ( see Cavosie v Hussain , 215 AD3d 1080, 1083 [3d Dept 2023]; see also Vassenelli v City of Syracuse , 138 AD3d 1471, 1474 [4th Dept 2016]), and the documentary evidence did not "utterly refute[ ] plaintiff's factual allegations, [thereby failing [*2]to] conclusively establish[ ] a defense as a matter of law" ( Goshen v Mutual Life Ins.

2023As Supreme Court concluded, based on the September 2016 maintenance alone, plaintiffs have pleaded facts sufficient to allege that the Mavis defendants owed them a duty of care under the first Espinal exception ( cf. Karydas v Ferrara-Ruurds , 142 AD3d 771, 772 [1st Dept 2016]; Kelley v Schneck , 106 AD3d 1175 , 1179-1180 [3d Dept 2013], lv dismissed 21 NY3d 1069 [2013]; compare Medinas v MILT Holdings LLC , 131 AD3d 121, 126-127 [1st Dept 2015]; Bono v Halben's Tire City, Inc. , 84 AD3d 1137, 1139 [2d Dept 2011]).

2023As Supreme Court concluded, based on the September 2016 maintenance alone, plaintiffs have pleaded facts sufficient to allege that the Mavis defendants owed them a duty of care under the first Espinal exception ( cf. Karydas v Ferrara-Ruurds , 142 AD3d 771, 772 [1st Dept 2016]; Kelley v Schneck , 106 AD3d 1175 , 1179-1180 [3d Dept 2013], lv dismissed 21 NY3d 1069 [2013]; compare Medinas v MILT Holdings LLC , 131 AD3d 121, 126-127 [1st Dept 2015]; Bono v Halben's Tire City, Inc. , 84 AD3d 1137, 1139 [2d Dept 2011]).

2023Moreover, even assuming, arguendo, that plaintiffs' allegations in the pleadings are sufficient to require BRH to negate the possible applicability of the first Espinal exception in order to establish its prima facie entitlement to summary judgment ( see Lingenfelter v Delevan Terrace Assoc. , 149 AD3d 1522 , 1523 [4th Dept 2017]), we conclude that BRH met its initial burden of establishing that it did not launch a force or instrument of harm by negligently creating or exacerbating a dangerous condition ( see generally Espinal , 98 NY2d at 142-143 ).

2023Plaintiffs and the Realty defendants failed to raise an issue of fact whether BRH negligently created or exacerbated a dangerous condition ( see Lingenfelter , 149 AD3d at 1523-1524; see generally Zuckerman v City of New York , 49 NY2d 557, 562 [1980]).

2023Plaintiffs and the Realty defendants failed to raise an issue of fact whether BRH negligently created or exacerbated a dangerous condition ( see Lingenfelter , 149 AD3d at 1523-1524; see generally Zuckerman v City of New York , 49 NY2d 557, 562 [1980]).

2023As Supreme Court concluded, based on the September 2016 maintenance alone, plaintiffs have pleaded facts sufficient to allege that the Mavis defendants owed them a duty of care under the first Espinal exception ( cf. Karydas v Ferrara-Ruurds , 142 AD3d 771, 772 [1st Dept 2016]; Kelley v Schneck , 106 AD3d 1175 , 1179-1180 [3d Dept 2013], lv dismissed 21 NY3d 1069 [2013]; compare Medinas v MILT Holdings LLC , 131 AD3d 121, 126-127 [1st Dept 2015]; Bono v Halben's Tire City, Inc. , 84 AD3d 1137, 1139 [2d Dept 2011]).

2022Under the first Espinal exception, a contracting party may be found to have launched a force or instrument of harm when that party creates or exacerbates a dangerous condition ( see McEleney v Riverview Assets, LLC , 201 AD3d 1159, 1162 [2022]).

2022Under the first Espinal exception, a contracting party may be found to have launched a force or instrument of harm when that party creates or exacerbates a dangerous condition ( see McEleney v Riverview Assets, LLC , 201 AD3d 1159, 1162 [2022]).

2020Timoney asserted that none of the Espinal exceptions to that general rule applies ( see generally Espinal v Melville Snow [*2]Contrs. , 98 NY2d 136, 140 [2002]), but it is well settled that a contractor who creates or exacerbates a hazardous snow condition by plowing may be held liable to a third party under the first Espinal exception, for launching a force or instrument of harm ( see Chamberlain v Church of the Holy Family , 160 AD3d 1399 , 1403 [4th Dept 2018]; Meyers-Kraft v Keem , 64 AD3d 1172, 1173-1174 [4th Dept 2009]; Rak , 38 AD3d at 1241 ).