In Rodriguez v. County of Westchester, a snow/ice slip-and-fall case, the Appellate Division, Second Department affirmed the denial of the motion for summary judgment filed by the listing broker for the property on which plaintiff fell.
Here are the facts, as summarized by the court:
The plaintiff allegedly was injured when she fell while walking on a sidewalk near her home on the day after a snowfall. The portion of the sidewalk on which the plaintiff fell had not been shoveled or treated with sand or salt and was located in front of property owned by the defendant Fannie Mae[.] The defendant Better Homes & Gardens Rand Realty was retained as the listing broker for the property. Pursuant to an assignment agreement, Better Homes was required to notify nonparty contractor Safeguard when snow removal was needed at the property.
The court affirmed the denial of Better Homes’ summary judgment motion, reasoning that
although Better Homes made a prima facie showing of its entitlement to judgment as a matter of law by demonstrating that the plaintiff was not a party to the assignment agreement between the defendant Fannie Mae and Better Homes, and therefore, Better Homes, the listing broker, owed no duty of care to her, in opposition, the plaintiff raised a triable issue of fact as to whether the assignment agreement constituted a comprehensive and exclusive maintenance obligation that entirely displaced Fannie Mae’s duty to maintain the premises in a safe condition. (Emphasis added.)