State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 31, 2016 521532 

________________________________

PATRICK J. HANNIGAN,

Respondent,

v

STAPLES, INC., et al.,

Defendants,

and

INLAND WESTERN SARATOGA SPRINGS

WILTON, LLC, et al.,

Defendants 

and ThirdParty 

PlaintiffsRespondents;

MEMORANDUM AND ORDER

HAYES PAVING CO., INC.,

Third-Party

Defendant

and FourthParty 

PlaintiffRespondentAppellant;

WAYNE SAMASCOTT,

FourthParty 

DefendantAppellantRespondent.

________________________________

Calendar Date: February 9, 2016

Before: Peters, P.J., McCarthy, Egan Jr. and Lynch, JJ.

__________

Kelly & Leonard, LLP, Ballston Spa (Thomas E. Kelly of

counsel), for fourth-party defendant-appellant-respondent.
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Shantz & Belkin, Latham (M. Randolph Belkin of counsel),

for Hayes Paving Co., Inc., third-party defendant and fourthparty plaintiff-respondent-appellant.

Finkelstein & Partners LLP, Newburgh (George A. Kohl 2nd of

counsel), for Patrick J. Hannigan, respondent.

Napierski, VanDenburgh, Napierski & O'Connor, LLP, Albany

(John W. VanDenburgh of counsel), for defendants and third-party

plaintiffs-respondents.

__________

Peters, P.J.

Cross appeal from an order of the Supreme Court (Nolan Jr.,

J.), entered January 30, 2015 in Saratoga County, which, among

other things, denied third-party defendant's motion for summary

judgment dismissing the third-party complaint.

At approximately 5:30 p.m. on February 12, 2008, plaintiff

allegedly slipped and fell on a patch of ice on the sidewalk in

front of a Staples store located in a shopping plaza owned by

defendant Inland Western Saratoga Springs Wilton, LLC and managed

by defendant Inland US Management, LLC (hereinafter collectively

referred to as Inland). Thereafter, plaintiff commenced this

action against Inland, among others,1 to recover for injuries he

sustained as a result of the fall. After answering, Inland

commenced a third-party action against third-party defendant,

Hayes Paving Co., Inc., the contractor hired to perform snow and

ice removal at the plaza. Hayes Paving, in turn, commenced a

fourth-party action against fourth-party defendant, Wayne

1 The action was also brought against defendants Staples,

Inc., Staples the Office Superstore East, Inc. and Staples #2055,

as lessees/tenants of the premises outside of which plaintiff

fell. Supreme Court dismissed the complaint against these

defendants, and that determination is not at issue on this

appeal.
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Samascott, the individual with whom it had entered into an oral

agreement to perform its maintenance responsibilities at the

plaza. Samascott joined issue and cross-claimed against Hayes

Paving for contribution and indemnification, and Inland amended

their answer to assert a claim against Samascott seeking the same

relief. 

Following discovery, Inland cross-moved for summary

judgment dismissing the claims against them or, in the

alternative, conditional summary judgment on their third-party

complaint against Hayes Paving for common-law and contractual

indemnification. Hayes Paving moved for summary judgment

dismissing the third-party complaint against it, and Samascott

moved for summary judgment dismissing the fourth-party complaint

and Inland's claim against him. Supreme Court, among other

things, denied both Hayes Paving's and Samascott's motions as

well as that portion of Inland's motion seeking summary judgment

dismissing plaintiff's claims against them, and granted so much

of Inland's motion as sought conditional summary judgment on

their contractual indemnification claim against Hayes Paving.

This cross appeal by Hayes Paving and Samascott ensued. 

We first address the viability of Inland's third-party

claim for contribution. To establish its prima facie entitlement

to judgment as a matter of law dismissing the third-party cause

of action for contribution, Hayes Paving was required to

demonstrate that it neither owed a duty of care directly to

plaintiff nor owed a duty of reasonable care to Inland

independent of its contractual obligation (see Davis v

Catsimatidis, 129 AD3d 766, 768 [2015]; Bermingham v Peter, Sr. &

Mary L. Liberatore Family Ltd. Partnership, 94 AD3d 1424, 1425

[2012]; Kearsey v Vestal Park, LLC, 71 AD3d 1363, 1365 [2010]). 

While a contractual agreement to provide snow or ice removal

services, standing alone, will generally not give rise to tort

liability in favor of an injured third party (see Espinal v

Melville Snow Contrs., 98 NY2d 136, 141 [2002]; Baker v Buckpitt,

99 AD3d 1097, 1098 [2012]; Knox v Sodexho Am., LLC, 93 AD3d 642,

642 [2012]), a duty to a noncontracting third party will arise

"where the contracting party, in failing to exercise reasonable

care in the performance of his [or her] duties, 'launche[s] a

force or instrument of harm'" (Espinal v Melville Snow Contrs.,
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98 NY2d at 140, quoting Moch Co. v Rensselaer Water Co., 247 NY

160, 168 [1928]; see Belmonte v Guilderland Assoc., LLC, 112 AD3d

1128, 1129 [2013]).

Here, there is no evidence that Hayes Paving owed a duty of

reasonable care to Inland independent of its obligations under

the contract (see Kearsey v Vestal Park, LLC, 71 AD3d at 1366;

Phillips v Young Men's Christian Assn., 215 AD2d 825, 826

[1995]). Further, even had Inland alleged sufficient facts in

either their complaint or bill of particulars to trigger the

aforementioned Espinal exception, thereby requiring Hayes Paving

to affirmatively negate its possible applicability (see Baker v

Buckpitt, 99 AD3d at 1098-1099; Foster v Herbert Slepoy Corp., 76

AD3d 210, 214 [2010]), we find that Hayes Paving discharged its

initial burden in that regard. In support of its motion, Hayes

Paving proffered its service agreement with Inland which, as

relevant here, required it to plow upon the accumulation of one

inch of snow, supply and mechanically spread deicing rock salt,

and apply calcium chloride on concrete walkways. To that end,

Samascott testified that, on the morning of the accident, he

arrived at the plaza and applied rock salt and calcium chloride

to the sidewalk and parking lot. He stated that there was no ice

along the sidewalk where plaintiff fell and explained that, as a

matter of course, any ice that was present on the sidewalk would

have been scraped off before he applied rock salt and calcium

chloride and would have been directed away from the building. 

The snow control sheets from the date of the accident

corroborated Samascott's account and also demonstrated that there

had not been an accumulation of snow prior to 7:00 a.m. on the

day of the accident. 

In response, Inland demonstrated the existence of factual

questions as to whether Hayes Paving, through the actions of

Samascott, created the dangerous condition that caused plaintiff

to slip and fall, thereby "launch[ing] a force or instrument of

harm" (Espinal v Melville Snow Contrs., 98 NY2d at 142 [internal

quotation marks, emphasis and citation omitted]). During his

examination before trial, plaintiff testified that the patch of

ice on which he slipped was "grooved" and "bumpy" and roughly a

quarter to a half of an inch in thickness, and explained that,

after he fell, he observed "chunks of ice" and "scrapings of ice"
-5- 521532 

against the nearby building. Inland also relied upon the reports

and affidavits of a meteorologist and registered architect

submitted by plaintiff in opposition to their summary judgment

motion. Upon reviewing the relevant climatological data, the

meteorologist concluded that melting and refreezing cycles

occurred on February 6, 9 and 10, 2008, which caused new areas of

ice to form, and that the air temperature remained below freezing

from February 10, 2008 until the date of the accident, thereby

indicating that the ice formation at the area of the incident

would have been present for at least 48 hours prior to

plaintiff's fall. In his affidavit, the architect averred that

the sidewalk where plaintiff fell sloped downward from the

Staples store towards the parking lot and contained a depression

where water could collect and freeze. In light of plaintiff's

testimony that ice was piled up against the building's front wall

and the evidence of multiple melting and refreezing cycles in the

days preceding the accident, he opined that water had drained

from the piled ice and pooled in the sidewalk depression, where

it froze. Viewing the evidence in a light most favorable to

Inland, as the nonmoving party (see Gronski v County of Monroe,

18 NY3d 374, 381 [2011]), we conclude that a question of fact

exists as to whether Hayes Paving negligently created a dangerous

condition by piling chunks of ice against the Staples store

building which, thereafter, melted and refroze into the patch of

ice upon which plaintiff allegedly slipped (see Belmonte v

Guilderland Assoc., LLC, 112 AD3d at 1129; Gushin v Whispering

Hills Condominium I, 96 AD3d 721, 722 [2012]; Elsey v Clark

Trading Corp., 57 AD3d 1330, 1332 [2008]; Torosian v Bigsbee Vil.

Homeowners Assn., 46 AD3d 1314, 1316 [2007]). Thus, Hayes Paving

was not entitled to dismissal of Inland's third-party claim for

contribution.

With respect to Inland's claim for contractual

indemnification, we find that Supreme Court erred in awarding

conditional summary judgment in their favor. The contract

provides that Hayes Paving shall "defend, hold harmless and

indemnify" Inland "from and against all claims, actions,

liabilities, damages, losses, costs and expenses, including

attorney's fees, arising out of or resulting from the performance

of [s]ervices at the [plaza] by [itself] or [its] subcontractors,

agents or employees." Here, the record does not establish as a
-6- 521532 

matter of law that plaintiff's fall "ar[ose] out of or result[ed]

from the performance" of Hayes Paving's deicing obligations

(compare DeSimone v City of New York, 121 AD3d 420, 422-423

[2014]; Imperati v Kohl's Dept. Stores, Inc., 91 AD3d 1111, 1114

[2012]). Moreover, unless Inland is found to be free from

negligence – a determination that cannot be made at this juncture

– conditional summary judgment for either contractual or

common-law indemnification is premature (see Lopez v New York

Life Ins. Co., 90 AD3d 446, 448 [2011]; Mesler v PODD LLC, 89

AD3d 1533, 1534-1535 [2011]; Cook v Orchard Park Estates, Inc.,

73 AD3d 1263, 1266 [2010]; Gomez v National Ctr. for Disability

Servs., 306 AD2d 103, 103-104 [2003]; State of New York v

Travelers Prop. Cas. Ins. Co., 280 AD2d 756, 757-758 [2001]). 

McCarthy, Egan Jr. and Lynch, JJ., concur.

ORDERED that the order is modified, on the law, without

costs, by reversing so much thereof as granted the motion of

defendants Inland Western Saratoga Springs Wilton, LLC and Inland

US Management, LLC for conditional summary judgment on their

third-party claim for contractual indemnification against thirdparty defendant; said motion denied; and, as so modified,

affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court