Friday, December 30, 2016

Suspension of snow removal servces for failure to pay maintenance fees.

The plaintiff alleges that while he was working for nonparty UPS and delivering a package to the home of the defendant Sorrentino, he was injured when he slipped and fell on snow and ice in defendant's driveway. At the time of the accident, Sorrentino lived in a gated community governed by the defendant Stone Hill.  Prior to the time of the accident, Stone Hill had suspended Sorrentino's snow removal services for the property, as a result of the nonpayment of maintenance fees to Stone Hill. The plaintiff subsequently commenced this action against Sorrentino and Stone Hill to recover damages for personal injuries. Stone Hill moved for summary judgment dismissing the complaint insofar as asserted against it and Sorrentino's cross claim. The Supreme Court granted the motion, and the Appellate Division reversed.

Stone Hill failed to demonstrate, prima facie, that Sorrentino's nonpayment of the maintenance fees relieved it of its duty to perform snow removal services on the property on the date of the accident, as was its responsibility under the "Declaration of Covenants, Restrictions, Easements, Charges and Liens," which governed the relationship between Sorrentino, as a property owner, and Stone Hill.

Student note:  Since Stone Hill failed to establish its prima facie entitlement to judgment as a matter of law, the burden never shifted to the plaintiff or Sorrentino to raise a triable issue of fact.

Case:  Coons v. Sorrentino, NY Slip Op 08501 (2d Dep't December 21, 2016)

Here is the decision.

Tuesday's issue:  The presumption of proper service.