DeMarrais v. Swift

283 A.D.2d 541, 724 N.Y.S.2d 654, 2001 N.Y. App. Div. LEXIS 5341

Opinion

—In an action to recover damages for personal injuries, etc., the defendant Steven Swift appeals from an order of the Supreme Court, Nassau County (DiNoto, J.), dated April 26, 2000, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed insofar as asserted against the appellant.

The plaintiff Arthur DeMarrais was injured when he slipped and fell on ice leading up to the house located on the property of the Reformed Church of Middleburgh, New York (hereinafter the Church). The Church had contracted with Stephen Swift to disassemble the house.

Swift did not undertake to remove snow and ice from the premises. Moreover, no evidence was presented that Swift owed a common-law duty to the injured plaintiff, who was not an employee of either Swift or the Church, nor otherwise lawfully frequenting the work site while work was in progress (cf., Rothschild v Faber Homes, 247 AD2d 889). As Swift owed no duty to the injured plaintiff to remove snow and ice from the premises, the Supreme Court should have granted his motion for summary judgment dismissing the complaint insofar as asserted against him.

The plaintiffs’ remaining contention is without merit. Friedmann, J. P., Goldstein, Feuerstein and Crane, JJ., concur.