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Genen v. Metro-North Commuter Railroad5/18/1999
OPINION OF THE COURT
Order, Supreme Court, New York County (Emily Goodman, J.), entered March 31, 1998, which, in an action to recover for personal injuries, to the extent appealed from, denied defendant Hunter Excavating Corp.'s motion for summary judgment seeking dismissal of the complaint and third-party complaint, affirmed, without costs.
Plaintiff Abraham Genen slipped and fell on an icy platform at defendant Metro-North's Salisbury Mills station. Metro-North had previously hired defendant Hunter to perform snow removal and sanding services at the station. On January 31, 1996, the day before the accident, two inches of snow fell and, according to Hunter, it plowed and sanded the platforms and station area pursuant to its contract. Plaintiff commenced the instant action for personal injuries against Metro-North and Hunter, and Metro-North brought a third-party action against Hunter for contribution and indemnification.
The issue to be decided on this appeal is whether the plaintiff may maintain a cause of action sounding only in negligence directly against the snow removal contractor Hunter. Clearly, Hunter assumed no independent duty of care to the plaintiff solely by virtue of its snow removal contract with Metro-North; that is, plaintiff is not a third-party beneficiary of the snow removal contract between Hunter and Metro-North. However, Hunter may be liable to the plaintiff for its affirmative acts of negligence if those acts created or increased a hazard and were the proximate cause of plaintiff's injuries (see, Jiminez v Cummings, 226 AD2d 112; Camacho v Ezras Yisrael, Inc., 221 AD2d 275; Restatement [Second] of Torts ยง 324A ; see also, Seifert v Arlona Co., 205 AD2d 679, 680).
In opposition to Hunter's motion for summary judgment, plaintiff presented evidence demonstrating that Hunter had performed snow removal operations on the day before the accident, in the area where plaintiff slipped. Plaintiff offered evidence showing that at the time of the accident, the area where he slipped had not been sanded and was covered with dangerous ice patches. This evidence supported plaintiff's claim in his bill of particulars that Hunter had "created the dangerous condition by incomplete ice removal." Having undertaken to clear the snow and ice, Hunter was obligated to exercise reasonable care in doing so, or be held liable in negligence where its acts created or increased the snow- related hazard (Glick v City of New York, 139 AD2d 402, 403). As it may reasonably be inferred that the dangerous ice patches were the residue of Hunter's incomplete and incompetent snow removal efforts, a triable issue of fact exists as to whether Hunter's conduct created or increased a hazard that would not have existed but for Hunter's actions (id.).
While several cases from other departments, and one from this Court, appear to hold that there is no duty to a plaintiff under similar circumstances (see, e.g., Girardi v Bank of New York Co., 249 AD2d 443, 444; Coyle v Long Is. Sav. Bank, 248 AD2d 350; Saraceno v First Natl. Supermarkets, 246 AD2d 638; Keshavarz v Murphy, 242 AD2d 680; Phillips v Young Men's Christian Assn., 215 AD2d 825; Bourk v Natl. Cleaning, 174 AD2d 827, lv denied 78 NY2d 858; Rebell v Emigrant Sav. Bank, AD2d, 684 NYS2d 216), they are not controlling. None of them discuss the pleadings or whether the plaintiffs asserted a cause of action in negligence against the contractor based on the theory that the contractor created or increased a dangerous hazard. Further, most of them do not disclose whether the contractor had attempted snow removal operations, or if they did, the result thereof. The analysis in these cases is simply too cursory to determine if t
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