                          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 Third-
                    Party
                    Plaintiffs-
                    Respondents;
                                            MEMORANDUM AND ORDER
HAYES PAVING CO., INC.,
                    Third-Party
                    Defendant
                    and Fourth-
                    Party
                    Plaintiff-
                    Respondent-
                    Appellant;

WAYNE SAMASCOTT,
                    Fourth-
                    Party
                    Defendant-
                    Appellant-
                    Respondent.
________________________________


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.
                              -2-                521532

      Shantz & Belkin, Latham (M. Randolph Belkin of counsel),
for Hayes Paving Co., Inc., third-party defendant and fourth-
party 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.
                              -3-                521532

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.,
                              -4-                521532

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 third-
party defendant; said motion denied; and, as so modified,
affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
