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Kevin Loftus Loftus Secures Dismissal of Case Against Contractor Under the Espinal Rule

On behalf of a local snow plowing contractor, attorney Kevin Loftus recently secured a dismissal from the Fourth Department.  In Waters v. Ciminelli (4th Dept. 2017), the Fourth Department held that the snow plowing contractor, JB Landscaping, did not owe a duty to the non-contracting third-party plaintiff.  It is well settled law in New York State that a contractual obligation, standing alone, will not give rise to tort liability in favor of a non-contracted third-party, unless it fits one of the three exceptions addressed by the Court of Appeals in Espinal v. Melville Snow Contractors, Inc. 98 NY 2d 136 (2002). 

            The plaintiffs argued that JB Landscaping’s activities fit under the third exception set forth in Espinal, “where the contracting party has entirely displaced the other party’s duty to maintain the premises safely.”  The Fourth Department agreed with Mr. Loftus’s argument that the contract between JB Landscaping and Ciminelli was not so comprehensive and exclusive that it entirely displaced Ciminelli’s duty to maintain the premises safely.  As a result, the Fourth Department overturned that part of the lower court’s decision and dismissed the case against the snow plowing contractor.


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