In a strong decision by Justice Debra James of the Supreme Court, New York County, summary judgment was granted and the complaint was dismissed against Fedcap Rehabilitation Services, in an action by an individual injured in an unwitnessed accident during Hurricane Nemo.   The plaintiff was walking on the sidewalk in front of a building owned by the Federal government, who contracted with Fedcap for snow removal services, when plaintiff fell as a result of being waved out of the way by an individual operating a snow plow on the sidewalk. The plaintiff did not come in contact  with the snow plow, which apparently did not stop, as Fedcap had no record of the accident. The plaintiff alleged negligence on the part of Fedcap in the operation of the snow plow.
It was successfully argued that under the leading case of Espinal, Fedcap did not owe a duty to the plaintiff. A snow removal contractor only owes a duty to the party with which he/she contracted and not, third parties. Plaintiff failed to provide opposition to this argument. Instead, plaintiff cross-moved for summary judgment arguing that under the recent Court of Appeals decision in Rodriguez v. City of New York, he was entitled to summary judgment, despite that he could not establish any of the elements of negligence.
In applying the law to the facts, the Court properly denied plaintiffâs motion for summary judgment, granted Fedcap summary judgment and dismissed the complaint, with costs and disbursements.
Gabriella Campiglia assisted in this successful motion.
To view the decision, click here.