Vorontsova v Deck 86th St. - 2630 LLC

Supreme Court, Kings County

Decided on May 29, 2026

Index No. 518738/2022

Aaron D. Maslow, J.

The following papers efiled on NYSCEF were used on this motion: Doc. Nos. 73-91, 97-108, 110-111.

Upon the foregoing papers, having heard oral argument^FN1, and due deliberation having been had, the within motion is determined as follows.

Introduction

Defendant Darp Tow Inc. moves for summary judgment dismissing the complaint and cross-claims against it.

Background

Plaintiff Viktoriya Vorontsova ("Plaintiff") commenced this action against Deck 86th Street — 2630 LLC d/b/a Dunkin Donuts & Baskin Robbins ("Deck"), James Avellini, and Darp Tow, Inc. ("Darp Tow") (collectively "Defendants"). The action arose out of a slip and fall incident after a snowstorm. The incident occurred on December 19, 2020, at a Dunkin Donuts-Baskin Robbins location at 2630 86th Street, Brooklyn, New York, operated by Deck. Prior to the alleged incident, the last measurable snowfall occurred on December 16, into the afternoon of December 17, 2020. No further data shows that any precipitation occurred on December 18 or December 19. Darp Tow's owner, Paul Marcel ("Marcel"), dispatched an operator by the name of "Nick," on December 17th to remove the snow from the premises. By the afternoon of December 18th, Marcel's records stated that the high was 39F and no other precipitation occurred. Deck did not request any other operators to return to the premises between December 17th and 19th for additional plowing. Then, at approximately 12:37 p.m. on December 19, 2020, after exiting the store, Plaintiff is seen to have slipped outside the front entrance/sidewalk of the store, in a snow-covered area. Darp Tow moves for summary judgment pursuant to CPLR § 3212, alleging they owed no duty of care toward Plaintiff. As noted, Darp Tow had plowed the premises on December 17, 2020; no salting was requested by Deck, and Darp Tow was not requested to return after December 17, 2020.

Movant Darp Tow's Contentions

Defendant Darp Tow argues that summary judgment should be granted because it owed no duty of care toward Plaintiff. Darp Tow claims that it rendered a plowing service on December 17, 2020, following the snowstorm but had no duty to return. Therefore, Deck retained sole responsibility for additional snow removal. The agreement between Deck and Darp Tow was a "verbal, call-by-call" agreement, whereby the company had to remove snow from the parking lot and driveway areas only. Defendant further contends that the incident occurred two days after services were performed, and no additional services were requested. Therefore, Darp Tow had no additional notice of dangerous conditions or ongoing responsibility to inspect the premises. Darp Tow contends that Plaintiff cannot establish any exception so as to hold Darp Tow liable as a third-party contracting service under the Espinal v Melville Snow Contractors, Inc. (98 NY2d 136 [2002]) factors. Here, Darp Tow did not create or exacerbate the conditions, [*2]as it only completed the snow removal service requested by Deck. Darp Tow further states that there was no privity with Plaintiff, and Plaintiff had no knowledge or reliance upon their snow removal services. Darp Tow performed the services on a limited, as-needed, basis.

Darp Tow also argues that, even assuming there was a duty owed to Plaintiff, Plaintiff's incident was not causally related to Darp Tow's services rendered. The services were performed two days prior to the accident and, therefore, there is no evidence that the services performed were the proximate cause of the slip and fall.

Furthermore, because the services rendered by Darp Tow were pursuant to an oral, as-needed agreement, Defendant argues that the lease and record evidence concerning Deck's premises place full responsibility on Deck for the removal and maintenance of their sidewalks. Therefore, Darp Tow argues that they are a mere third-party snow removal contractor and that they owed no duty to inspect and owed no continuing services at the premises. Therefore, they cannot be held liable.

Plaintiff's Opposition

Plaintiff contends that summary judgment should not be granted because a triable issue of fact exists. Plaintiff argues: (1) certain Espinal factors apply here; (2) Darp Tow failed to meet their prima facie burden; and (3) triable issues of fact preclude summary judgment.

First, under the Espinal factors, a contractor can be held liable to a third party when the contractual obligations create an unreasonable risk of harm or an increase of harm. Plaintiff contends that Darp Tow inadequately failed to clean the pedestrian walkways, leading to no clear pedestrian pathway. Plaintiff alleges that Darp Tow piled snow on the sloped driveway, without salt treatment, producing a sealed ice condition that caused Plaintiff to slip.

Second, Plaintiff contends that Darp Tow did not meet its prima facie burden in that it relied on testimony of Marcel and not on testimony of the person that performed the services on December 17, 2020. That person was "Nick." Nick has since passed; however, Nick's full name, employment history, and training were not disclosed. Plaintiff alleges that Marcel cannot fully testify from personal knowledge as to what Nick did at the premises, how high he piled the snow, and the state of the property he left the premises in.

Plaintiff also contends that there remains a triable issue of fact that precludes summary judgment. Plaintiff argues that Darp Tow's plowing service included the front and main entrance whereas Darp Tow contends that this service was limited only to the parking lot and driveway areas. Here, Plaintiff contends that this discrepancy should be left to a jury to decide.

Co-Defendant Deck's Opposition

Deck argues that Darp Tow owed a duty of care to Plaintiff under Espinal and that there is an issue of fact regarding Darp Tow's launching an instrument of harm.

Discussion

Defendant Darp Tow's motion for summary judgment should be granted because it did not owe a duty of care toward Plaintiff. Under the Espinal factors, a snow removal contractor does not owe a duty of care to third parties unless one of three exceptions applies: (1) the contractor launched an instrument of harm, or increased the risk; (2) the plaintiff suffered injury as a result of reasonable reliance upon the contractor's continuing performance of a contractual obligation; and (3) the contracting party entirely displaced the duty to maintain the premises safely (see Espinal v. Melville Snow Contractors, 98 NY2d 136, 137 [2002]).

Darp Tow did not create or exacerbate the conditions of the premises. Darp Tow provided requested plowing services for Deck on December 17, 2020, and no additional plowing services were requested. Here, Darp Tow plowed the premises after the snowfall and, because additional services were not requested, Darp Tow cannot be held liable for exacerbating dangerous conditions. On December 18, 2020, it was recorded in Marcel's logbook that the temperature high was 39° F with a "complete meltdown" of the snow. Marcel contends that his standard practice of removal was to move the snow to an area where it would "melt safely and not refreeze." With Plaintiff's logbook, it shows that the snow was completely melted and any refreezing of the snow conditions was due in part to the natural snow melt/re-freeze cycle. Therefore, because this is a natural cycle of the snow melt, Darp Tow could not have exacerbated or worsened these conditions, especially as the plow service took place days prior to this incident occurring. Plaintiff does not submit any substantive evidence that the method of snow removal by Darp Tow proximately resulted in her slip and fall; the claim of proximate causation is speculative.

Second, there was no interaction between Plaintiff and Darp Tow, further suggesting that Plaintiff could not have relied on Darp Tow's performance. There was no interaction or privity between the parties, and no such obligation under the oral agreement between Deck and Darp Tow inured to Plaintiff's benefit. Because Darp Tow was a contractor per a limited, as-needed, agreement, Deck had sole responsibility, according to the lease agreement to maintain the premises. This oral agreement created a contractual course of performance between the store and Darp Tow whereby Darp Tow completed the services at Deck's request. Since Darp Tow plowed on December 17th, and was not called upon to plow again prior to the incident on December 19th, it cannot be held liable. Darp Tow did not owe a duty to Plaintiff under these circumstances. It fell to Deck's responsibility, under the premises lease, to fully maintain the safety of the pedestrian areas once Dark Tow had plowed.

Moreover, the third Espinal factor — displacement of the duty to safely maintain the premises — is absent here. Darp Town performed as directed by Deck in a limited manner.

Even if Darp Tow owed a duty of care to Plaintiff, Darp Tow's actions cannot be assumed to be the proximate cause of the injuries as negligence alone is insufficient (see Rivera v. New York, 11 NY2d 856, 857 [1962]). The incident occurred two days after Darp Tow plowed, during a period of natural freezing and refreezing conditions, and even if water runoff occurred, it was a result of the natural snow melt cycle which does not automatically make Darp Tow liable. Because Darp Tow did not have a continuing duty to re-plow the premises, they are not liable to Plaintiff, and the motion for summary judgment should be granted.

A limited contractual undertaking to provide snow removal services generally does not render the contractor liable in tort for the personal injuries of third parties (see Canciani v Stop & Shop Supermarket Co., LLC, 203 AD3d 1011 [2d Dept 2022]; Arnone v Morton's of Chicago/Great Neck, LLC, 183 AD3d 862 [2d Dept 2020]). Darp Tow's prima facie case of not owing a duty of care to Plaintiff has not been rebutted by Plaintiff, whose claims asserting applicability of two Espinal factors are speculative (see Brito-Hernandez v Superior Contracting, 233 AD3d 1058 [2d Dept 2024]).

Conclusion

Accordingly, Defendant Darp Tow Inc.'s motion for summary judgment is GRANTED. Plaintiff's complaint and all cross-claims against Defendant Darp Tow Inc. are dismissed.

The foregoing constitutes the Decision and Order of the Court.