Defendants Pisciotta Services, Inc. and Salvatore J. Pisciotta, Jr. move for an order, pursuant to CPLR 3212: 1) Granting them summary judgment on the grounds that: (a) defendants have no duty to remove ice and snow from a public sidewalk;(b) defendants did not have notice of the alleged defective condition; (c) defendant Salvatore J. Pisciotta, Jr. was not an owner of the property where the alleged accident occurred, and therefore, owed no duty to the plaintiffs; and (d) accord and satisfaction, in that defendant Salvatore J. Pisciotta, Jr. forgave rent in consideration of plaintiffs not suing him or his corporation; and 2) Judgment in the sum of $5,982.34 against plaintiff, Joseph Campone.

Plaintiffs Joseph Campone and Winifred Campone cross-move for an order, pursuant to CPLR 3211, dismissing the defendants Pisciotta Services, Inc.'s and Salvatore J. Pisciotta, Jr.'s Fifth Affirmative Defense, and for a further order, pursuant to CPLR 3212, dismissing said defendants' Second Counterclaim.

Defendant Joseph Pisciotta moves for an order, pursuant to CPLR 3212, dismissing plaintiffs' complaint against him, along with any other claims against him.

The following submissions were read:

Notice of Motion - Affirmation of Paul J. Goldstein, Esq. -1-5

Affidavit of Joseph J. Pisciotta, Jr. - Affidavit of

Kathryn Whittaker - Annexed Exhibits

Notice of Cross-Motion - Affidavit of Joseph Campone -6-11

Affirmation of Ronald K. Friedman, Esq. - Affidavit of Guy Lewis -

Affidavit of Winifred Campone - Annexed Exhibits

Notice of Motion - Affirmation of John P. Meenagh, Jr., Esq. -12-14

Annexed Exhibits

Ronald K. Friedman, Esq.'s Affirmation in Opposition -15-17

Affidavit of Joseph Campone - Annexed Exhibits

Reply Affirmation of Paul J. Goldstein, Esq.18

Reply Affirmation of Ronald F. Friedman, Esq. - Annexed Exhibits19-20

Reply Affirmation of John P. Meenagh, Jr., Esq.21

Upon the foregoing papers it is hereby ORDERED that the defendants Pisciotta Services, Inc. and Salvatore J. Pisciotta, Jr.'s motion for summary judgment dismissing the claims against them is denied. Further, said defendants' motion for summary judgment on their First Counterclaim in the amount of Five Thousand Nine Hundred Eighty-Two Dollars and Thirty-[*2]Four Cents ($5,982.34) against plaintiff Joseph Campone is denied. In addition, defendants Pisciotta Services, Inc. and Salvatore J. Pisciotta, Jr.'s Fifth Affirmative Defense of accord and satisfaction and Second Counterclaim for contractual indemnification and failure to procure liability insurance are dismissed. Further, defendant Joseph Pisciotta's motion for summary judgment dismissing the complaint against him and any other claims against him is granted. All other requested relief is denied.

The instant personal injury action arises out of plaintiff Joseph Campone's alleged slip and fall on ice at 45 Bement Avenue, Poughkeepsie, New York on January 25, 2006 at approximately 10:30 a.m. Plaintiff Joseph Campone alleges that the ice which caused him to fall was "formed as a result of a defective condition of the Premises' roof which allowed water and melting snow to drip from the roof to the sidewalk below." (Affidavit of Joseph Campone, paragraph 2.)

At the time of plaintiff's accident, plaintiff was a principal of Hudson Valley Auto Body, Inc. which was a tenant at 45 Bement Avenue. The property at 45 Bement Avenue was a commercial building which at the time of the accident was titled in the name of defendant Pisciotta Services, Inc. However, it is undisputed that said corporate entity was actually dissolved in 1997 - approximately nine years prior to the accident. It is further undisputed that the sole shareholder of said dissolved corporation was defendant Salvatore J. Pisciotta, Jr. In addition, the tenant Hudson Valley Auto Body, Inc. made all rental checks payable directly to defendant Salvatore J. Pisciotta, Jr. and not to any corporate entity. Defendant Salvatore J. Pisciotta, Jr. argues that he should not be held liable because title was held in the name of the dissolved corporate entity. However, it is well settled that, "the corporate veil will be pierced . . . [w]hen a corporation has been so dominated by an individual . . . and its separate entity so ignored that it primarily transacts the dominator's business instead of its own and can be called the other's alter ego". (Williams v. Lovell Safety Management Co., LLC, 71 AD3d 671 (2nd Dept., 2010) quoting Matter of Island Seafood Co. v. Golub Corp., 303 AD2d 892, 893, 759 NYS2d 768 [internal quotation marks omitted]; see Austin Powder Co. v. McCullough, 216 AD2d 825, 827, 628 NYS2d 855; Pebble Cove Homeowners' Assn. v. Fidelity NY FSB, 153 AD2d 843, 545 NYS2d 362.) The plaintiffs have raised triable issues of fact as to whether defendant Salvatore J. Pisciotta, Jr. so dominated the dissolved corporation and ignored its separate entity in that it primarily transacted Salvatore J. Pisciotta, Jr.'s business instead of its own. Accordingly, defendant Salvatore J. Pisciotta, Jr.'s motion to dismiss the complaint against him must be denied.

With respect to defendants Pisciotta Services, Inc. and Salvatore J. Pisciotta, Jr.'s claims that it did not have notice of the alleged defective condition, the plaintiffs have raised a triable issue of fact by submitting an affidavit from Joseph Campone. Mr. Campone states in his affidavit, inter alia, that "the defendants' had actual notice of the roof's dripping condition prior to my accident. . . I had notified defendant Salvatore of the roof's dripping condition three or four times over a period of 9-10 months prior to my accident on January 25, 2006. Although he said he had someone look at it, unfortunately he did not make any of the appropriate repairs to the Premises which would have corrected the defective condition, i.e., installing gutters and leaders on the roof, and prevented the water and melting snow from dripping onto the sidewalk and forming the ice in front of the entry door." (Affidavit of Joseph Campone, paragraph 23.) [*3]The Court also notes that the defendants and plaintiffs have submitted conflicting expert meteorologist affidavits, leaving a triable issue of fact as to whether ice could have formed on the sidewalk at the time of plaintiff's accident.

With respect to defendants Pisciotta Services, Inc. and Salvatore J. Pisciotta, Jr.'s Fifth Affirmative Defense of accord and satisfaction, said affirmative defense must be dismissed as barred by the General Obligations Law. Section 15-501(2) of the General Obligations Law provides as follows: "An executory accord shall not be denied effect as a defense or as the basis of an action or counterclaim by reason of the fact that the satisfaction or discharge of the claim, cause of action, contract, obligation, lease, mortgage or other security interest which is the subject of the accord was to occur at a time after the making of the accord, provided the promise of the party against whom it is sought to enforce the accord is in writing and signed by such party or by his agent." (Italics added.) It is undisputed that there is no writing signed by the plaintiffs or their agent which released defendants from liability in exchange for any "forgiveness of rent." In fact, plaintiff Joseph Campone has submitted an affidavit to the Court in which he states, "I never spoke to the defendants about, nor did I make any agreement with them, verbal, written or implied, whereby I agreed that I would not sue the defendants and would release them from any claim I had, in consideration of their agreement to waive my payment of rent for the period February, 2006 through June, 2006. Instead, the only conversations or discussions I had with the defendants after my accident concerning rent was when the defendant Salvatore told me he would let me slide' for the rent while I was injured." (Affidavit of Joseph Campone, paragraph 24.) (Emphasis original.) In addition, there is no evidence that plaintiffs agreed to indemnify the defendants or to procure general liability insurance. Accordingly, the defendants' Second Counterclaim must be dismissed.

The defendants Pisciotta Services, Inc. and Salvatore J. Pisciotta, Jr. assert a counterclaim in the amount of Five Thousand Nine Hundred Eight-Two Dollars and Thirty-Four Cents ($5,982.34) against plaintiff Joseph Campone for rent and cleaning of the leased premises. However, plaintiffs have asserted that any unpaid rent/cleaning fees would not be owed by plaintiff Joseph Campone, but rather by the tenant, Hudson Valley Auto Body, Inc. The Court notes that copies of the checks used to pay the rent for the premises are drawn from Hudson Valley Auto Body, Inc.'s account and the sign affixed to the exterior of the premises reads: "Hudson Valley Auto Body." The defendants have failed to establish their claim for rent/cleaning fees against the individual plaintiff Joseph Campone. Accordingly, the granting of summary judgment against plaintiff Joseph Campone for rent/cleaning fees is not appropriate.

The defendant Joseph Pisciotta's motion for summary judgment dismissing the complaint against him must be granted. Plaintiffs allege that defendant Joseph Pisciotta, who did business as Pisciotta Lawn Maintenance, was responsible for the plowing and clearing of snow in front of the leased premises. Defendant Joseph Pisciotta admits that he would clear snow in front of the premises, but asserts that his father Salvatore J. Pisciotta, Jr. would also sometimes shovel snow in front of the premises. In any event, "Where a . . . contract is not a comprehensive and exclusive property maintenance obligation intended to displace . . . [the] duty as a landowner to safely maintain the property, as a general rule the contractor owes no duty of reasonable care to prevent foreseeable harm to an injured plaintiff. An exception to this general rule exists when the plaintiff detrimentally relies upon the contractor's continued performance of his contractual [*4]obligations or where the contractor's actions advanced to such a point as to have launched a force or instrument of harm.' Here, [any agreement] between the defendants [Pisciotta Services, Inc. and/or Salvatore J. Pisciotta, Jr.] and [Joseph Pisciotta] . . . was not sufficiently comprehensive or exclusive so as to displace the . . . duty as the landowner to maintain its property in a safe condition. (Bugiada v. Iko, 274 AD2d 368, 369 (2nd Dept., 2000), appeal denied 96 NY2d 726 (2001) (citations omitted).) The Court notes that a "defendant who negligently creates or exacerbates a dangerous condition while performing services pursuant to a contract may be liable for injuries sustained by a third party." (Collins v. Laro Service Systems of New York, Inc., 36 AD3d 746 (2nd Dept., 2007) citing Espinal v. Melville Snow Contrs., 98 NY2d 136, 138; Dappio v. Port Auth. of NY & N.J., 299 AD2d 310, 311). However, the defendant Joseph Pisciotta has "made a prima facie showing that his . . . operations did not create the [alleged defective condition]." (Id. citing Santantonio v. Stop & Shop, 5 AD3d 659; Schmidt v. Promaster Cleaning Serv., 281 AD2d 468.)

Plaintiff Joseph Campone has "failed to raise a triable issue of fact as to whether he detrimentally relied on [Joseph Pisciotta's] performance of [his] contractual obligations (see, Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 NY2d 220), or whether his actions had advanced to such a point as to have launched a force or instrument of harm'." (Espinal v. Melville Snow Contractors, Inc., 283 AD2d 546 (2nd Dept., 2001) quoting Moch Co. v. Rensselaer Water Co., 247 NY 160, 168; see also Pavlovich v. Wade Associates, Inc., 274 AD2d 382 (2nd Dept., 2000), appeal denied 95 NY2d 767 (2000); Dorestant v. Snow, Inc., 274 AD2d 542 (2nd Dept., 2000); Grau v. Taxter Park Associates, 283 AD2d 551 (2nd Dept., 2001); and Donahue v. E. Petracca & Co., Inc., 277 AD2d 346 (2nd Dept., 2000).) Further, "there is simply no evidence in the record that [Joseph Pisciotta] failed to properly perform his contractual duties or that he created or exacerbated a dangerous condition." (Mahaney v. Neuroscience Center, 28 AD3d 432, 433 (2nd Dept., 2006) citing Espinal v. Melville Snow Contractors, Inc., supra at 142; Katz v. Pathmark Stores, Inc., 19 AD3d 371 (2nd Dept., 2005); Maldonado v. Novartis Pharm. Corp., 18 AD3d 720; McCord v. Olympia & York Maiden Lane Co., 8 AD3d 634; Raynor-Brown v. Garden City Plaza Assoc., 305 AD2d 572.) Accordingly, defendant Joseph Pisciotta's motion for summary judgment must be granted.

This matter is adjourned to November 8, 2010 at 9:30 a.m. for jury selection.

So Ordered.

Dated: April, 2010

Poughkeepsie, New York

_______________________________Hon. Christine A. Sproat

Supreme Court Justice