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A Burden as Light as New-Fallen Snow

July 8, 2010

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New York's Second Department (covering Brooklyn, Queens, Long Island, and several counties north of the City) has issued a ruling "to discuss and clarify what a snow-removal contractor must show to establish its prima facie entitlement to summary judgment."
The seminal case in this area of the law is Espinal v. Melville Snow Contractors, 98 NY2d 136, where New York's highest court ruled that "a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party." In other words, the typical slip-and-fall plaintiff will generally not have a viable claim against the snow removal contractor. However, the court set out three exceptions to this general rule, to wit, (1) where the contractor negligently "launches a force or instrument of harm;" (2) where the plaintiff detrimentally relies on the contractor's performance of its duties; and (3) where the contractor has entirely displaced the owner's duty to maintain the property safely.
In Foster v. Herbert Slepoy Corp., (dediced June 22, 2010), the plaintiff slipped and fell on snow/ice in the driveway/parking lot of the building where she lived. She filed suit against the both the owner/manager and against the contractor, Kerry Clancy. The plaintiff admitted at her deposition that she did not know of Clancy's role as the contractor nor even of Clancy's existence before filing suit. Clancy moved for summary judgment.
The Foster court ruled that Clancy demonstrated his prima facie entitlement to summary judgment merely by coming forward with proof that the plaintiff was not a party to his contract and that he therefore owed no duty of care to the plaintiff. In other words, the contractor was not required to negate the possible applicability of the Espinal exceptions because there was nothing in the plaintiff's complaint or bill of particulars that alleged that any of the exceptions applied. The court explained that the initial burden on the contractor in moving for summary judgment is "governed by the allegations of liability made by the plaintiff in the pleadings." Here, once the contractor made his initial showing, the burden then shifted to the plaintiff to show that there was a question of fact as to the applicability of one of the three Espinal exceptions.
In short, the contractor contemplating summary judgment must look to the pleadings to see if an Espinal exception is addressed. If it is not, the initial burden of making out a prima facie entitlement to summary jdugment is as light as new-fallen snow.

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