Background
Jeffrey Polisoto slipped and fell on ice in a parking lot owned by St. Gregory the Great Roman Catholic Church and leased to Kaleida Health. The lease required Kaleida to provide, at its sole cost, snow plowing services for all parking areas. Kaleida had contracted with Groundhog Landscaping and Lawncare, Inc. to service the parking lot.
Plaintiffs sued St. Gregory, Kaleida, and Groundhog Landscaping. Groundhog moved for summary judgment, arguing that it owed no duty of care to Polisoto because he was not a party to its landscaping agreement with Kaleida. Plaintiffs cross-moved to disqualify counsel representing both Kaleida and St. Gregory on conflict-of-interest grounds. Supreme Court granted Groundhog’s motion and denied the disqualification cross-motion. Plaintiffs appealed both rulings.
The Court’s Holding
The Fourth Department reversed the dismissal against Groundhog Landscaping but affirmed the denial of the disqualification motion.
On the contractor’s duty of care, the court applied the framework established in Espinal v. Melville Snow Contractors (98 NY2d 136 [2002]): a contractual obligation to a property owner generally does not give rise to tort liability to a third party, unless one of three exceptions applies—including whether the contractor’s contract completely displaced the owner’s duty to maintain the premises. Groundhog met its initial burden by showing Polisoto was not a party to the agreement. The burden then shifted to plaintiffs to raise a triable issue.
The court found they did. Although the written agreement between Groundhog and Kaleida did not expressly require salting—only plowing—the owner and president of Groundhog testified at deposition that its “services” included both plowing and salting. Further, Groundhog had in fact salted the lot on the day of Polisoto’s fall. The court held that a reasonable jury could find that Groundhog’s actual practice completely displaced Kaleida’s and St. Gregory’s obligation to address ice in the lot, triggering the Espinal complete-displacement exception.
On the disqualification motion, the court held that plaintiffs lacked standing to seek disqualification because they did not establish any current or prior attorney-client relationship between themselves and opposing counsel. Without such a relationship, they had no basis to seek disqualification under Rule 1.7’s concurrent conflict-of-interest provision.
Key Takeaways
- Under Espinal, a snow removal contractor that does not expressly agree to salt but in practice assumes complete responsibility for ice treatment—displacing the property owner’s independent maintenance obligation—may owe a duty of care to injured third parties even absent privity.
- Evidence of the contractor’s actual performance (here, having salted the lot on the day of the fall) can create a triable issue on whether the Espinal complete-displacement exception applies, even when the written contract is silent on salting.
- A plaintiff lacks standing to move for disqualification of opposing counsel on Rule 1.7 conflict grounds without establishing that they themselves had a current or prior attorney-client relationship with that counsel.
Why It Matters
Slip-and-fall cases involving snow and ice on commercial property are among the most litigated personal injury matters in New York, and the Espinal framework for third-party contractor liability generates recurring disputes about what “complete displacement” means in practice. This decision clarifies that the inquiry is not limited to the four corners of the contract—actual operational conduct can broaden a contractor’s duty of care beyond what the written agreement explicitly requires.
For property owners, commercial lessees, and their insurance carriers, this ruling reinforces the importance of precisely defining the scope of snow removal contracts. When a contractor’s actual performance (salting) exceeds the written contract’s requirements (plowing only), it creates potential exposure to third-party slip-and-fall claims that the parties may not have anticipated when the contract was signed.