Wade Clark Mulcahy LLP

In the case of <em>Espinal v. Melville Snow Contractors,</em> 98 NY2d 136, 142-143, the New York State Court of Appeals, held that a snow removal contractor does not owe a duty of care to third-parties. However, in the years since the holding in <em>Espinal</em>, the trial courts have made it more difficult for a snow removal contractor to win summary judgement. In the case of <em><a href="http://www.courts.state.ny.us/reporter/3dseries/2012/2012_09044.htm">Eugenia Smilowitz v. GCA Services Group</a>, </em>the Supreme Court, Queens County got it right. The plaintiff, an employee of St. Johns slipped and fell on snow and ice on the St. Johns campus. The defendant, GCA was responsible for maintaining the grounds, including snow removal.
GCA moved for summary judgment, arguing that under the "storm and progress rule" a snow removal contractor cannot be held liable for injuries sustained as a result of slippery conditions that occur during an ongoing storm, or for a reasonable time thereafter. In opposition, the plaintiff tendered no evidence that GCA fell into any of the <em>Espinal</em> exceptions. More specifically. the plaintiff failed to prove that GCA created or exacerbated the icy condition that she slipped on. The Appellate Division, Second Department upheld the lower court's decision, holding that merely undertaking snow removal duties, as required by contract, cannot be said to have created or exacerbated a dangerous condition.
Thanks to Ed Lomena for his contribution.
For more information contact  Denise Fontana Ricci at <a href="mailto:dricci@wcmlaw.com">dricci@wcmlaw.com</a>.
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