WAS RED ROOF DENIED GOOD GRACE(S) HERE?
After he slipped and fell in an Erie County parking lot owned by Ref Roof Inns, A.S. filed suit to to recover damages for his personal injuries. Red Roof, in turn, sued its snow removal contractor, Grace Property Service, claiming that the latter was contractually responsible to indemnify the property owner if Grace were found to have breached its maintenance agreement.
After the Erie County Supreme Court found (in response to the parties’ motion practice) that Grace was contractually liable for the fall (and any damages which flowed therefrom), an appeal followed.
Grace was reportedly required to perform its snow removal services “upon two (2) inches of snowfall, and every two (2) inches of snowfall thereafter," and was obligated to apply "salt . . . on an as needed basis." The company also agreed to accept responsibility for any damages which arose “out of or in connection with any act or omission of [Grace Property] in connection with its performance under [the agreement]."
Interestingly, A.S. and his wife testified that it had not snowed for some two days prior to the incident, but that there was the presence of “`unsalted, melting ice,’” and that a "`patch of . . . chunky, slushy, ice’” had been observed.
Given that backdrop, the Appellate Division, Fourth Department, modified the Supreme Court's order because it didn’t think that Red Roof had unequivocally established an entitlement to relief in its favor. The motel owner hadn’t shown “plaintiff's accident ‘ar[ose] out of or in connection with any act or omission of [Grace Property] in connection with its performance under [the agreement].’” And, because it failed to establish that it fully “performed its obligations under the agreement,” the AD4 thought Grace’s dismissal request was appropriately denied.
Would you call that a coup de grace?
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DECISION