        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1170
CA 16-00554
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.


JACKUELINE WATERS AND JAMES WATERS,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

CIMINELLI DEVELOPMENT COMPANY, INC., 205
PARK CLUB LANE, LLC AND JB LANDSCAPING &
SNOWPLOWING, LLC, DEFENDANTS-APPELLANTS.


CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (KEVIN E. LOFTUS OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Timothy
J. Drury, J.), entered December 8, 2015. The order denied the motion
of defendants for summary judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting that part of the motion
seeking dismissal of the complaint against defendant JB Landscaping &
Snowplowing, LLC, and granting that part of the motion seeking
dismissal of the complaint against defendants Ciminelli Development
Company, Inc., and 205 Park Club Lane, LLC, to the extent that the
complaint, as amplified by the bill of particulars, alleges that they
created or had actual notice of the allegedly dangerous condition, and
as modified the order is affirmed without costs.

     Memorandum: Plaintiffs commenced the instant action seeking
damages for injuries allegedly sustained by Jackueline Waters
(plaintiff) when she slipped and fell on ice in a parking lot owned by
defendant 205 Park Club Lane, LLC (205 Park), and managed by defendant
Ciminelli Development Company, Inc. (Ciminelli). Defendant JB
Landscaping & Snowplowing, LLC (JB Landscaping) was the snowplowing
contractor for the property. Defendants collectively moved for
summary judgment dismissing the complaint, and Supreme Court denied
the motion.

     With respect to JB Landcaping, the only issue before us, as
limited by the parties’ briefs on appeal, is whether the court erred
in finding that there are triable issues of fact under the third
exception set forth in Espinal v Melville Snow Contrs. (98 NY2d 136),
i.e., “where the contracting party has entirely displaced the other
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                                                         CA 16-00554

party’s duty to maintain the premises safely” (id. at 140). We agree
with JB Landscaping that the court erred in determining that there are
triable issues of fact precluding summary judgment dismissing the
complaint against it, and we therefore modify the order accordingly.
We conclude that the contract between JB Landscaping and Ciminelli was
not so comprehensive and exclusive that it entirely displaced
Ciminelli’s and 205 Park’s duty to maintain the premises safely, such
that JB Landscaping assumed a duty to plaintiff. Although the
contract in the case at bar delegated all of the snow and ice removal
to JB Landscaping, along with responsibility for monitoring the
property 24 hours per day, seven days per week, the contract also
provided that 205 Park and the tenant of the property could request
additional services from JB Landscaping, including snow and ice
removal. In addition, the contract reserved Ciminelli’s rights “to
determine the depth of snow at locations where JB Landscaping performs
snowplowing” and to direct JB Landscaping to reposition or remove
accumulated snow piles. The contract also required weekly submission
of maintenance logs to Ciminelli and preapproval from Ciminelli to
engage a subcontractor to assist with snow and ice removal. In view
of the foregoing, we conclude that Ciminelli continued to “monitor[]
the performance of the snow plowing contract” (Torella v Benderson
Dev. Co., 307 AD2d 727, 728; see Eisleben v Dean, 136 AD3d 1306, 1307;
Foster v Herbert Slepoy Corp., 76 AD3d 210, 214-215), and therefore JB
Landscaping did not assume a duty of care to plaintiff (see Espinal,
98 NY2d at 140).

     With respect to the remaining defendants, we note that
plaintiffs, by briefing the issue of constructive notice only, have
abandoned any claims that defendants had actual notice of or created
the dangerous condition (see Ciesinski v Town of Aurora, 202 AD2d 984,
984), and we therefore further modify the order accordingly. With
respect to constructive notice, we conclude that the court properly
denied the motion. To receive summary judgment with respect to
plaintiffs’ claim of constructive notice, defendants had the initial
burden of establishing as a matter of law that the alleged icy
condition was not visible and apparent or “ ‘that the ice formed so
close in time to the accident that [defendants] could not reasonably
have been expected to notice and remedy the condition’ ” (Gwitt v
Denny’s, Inc., 92 AD3d 1231, 1231-1232). In support of their motion,
defendants submitted, inter alia, the deposition testimony of
plaintiff, who testified that when she pulled into the subject parking
lot she observed a “sheen” or a “shine” on the lot and that, when she
exited her car and started walking through the lot, the condition of
the parking lot was “icy” and “slippery.” She further described where
she fell as a “large ice condition” and testified that she did not
encounter any dry pavement or pavement that was not covered by ice.
Thus, we conclude that defendants failed to satisfy their initial
burden of establishing that the alleged icy condition was not visible
and apparent (see Hagenbuch v Victoria Woods HOA, Inc., 125 AD3d 1520,
1521; Gwitt, 92 AD3d at 1232; Kimpland v Camillus Mall Assoc., L.P.,
37 AD3d 1128, 1128-1129).

     Contrary to defendants’ further contention, they failed to meet
their initial burden of establishing as a matter of law “ ‘that the
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                                                         CA 16-00554

ice formed so close in time to the accident that [they] could not
reasonably have been expected to notice and remedy the condition’ ”
(Gwitt, 92 AD3d at 1231-1232; see Conklin v Ulm, 41 AD3d 1290, 1291).
In support of their motion, defendants submitted the deposition
testimony of a JB Landscaping employee, who testified that he
conducted his inspection of the subject parking lot between 4:30 a.m.
and 5:00 a.m. on the morning plaintiff was injured and did not observe
any ice. After he left the parking lot and went home, he continued to
monitor the weather; specifically, he recalled a weather newscast that
the temperature was currently 33 or 34 degrees and would be rising to
37 degrees. Defendants also submitted the affidavit of an expert
meteorologist, who opined that temperatures dropped to near freezing
between 4:30 a.m. and 7:45 a.m. on the day in question and therefore,
in his view, the formation of ice occurred between 4:30 a.m. and 7:45
a.m. The weather records attached to his affidavit recited, however,
that from 3:01 a.m. until 6:24 a.m. the short term forecasts called
for falling temperatures, and that any wet or untreated pavement could
result in patchy black ice. Plaintiff testified that she fell at 7:45
a.m. In our view, the inspection of the area approximately three
hours before the plaintiff fell does not establish “ ‘that the ice
formed so close in time to the accident that [defendant(s)] could not
reasonably have been expected to notice and remedy the condition’ ”
(Conklin, 41 AD3d at 1291; see Piersielak v Amyell Dev. Corp., 57 AD3d
1422, 1423; Bullard v Pfohl’s Tavern, Inc., 11 AD3d 1026, 1027).




Entered:   February 3, 2017                    Frances E. Cafarell
                                               Clerk of the Court
