NY appeals court reinstates slip-and-fall lawsuit

A New York state appeals court has reinstated part of a slip-and-fall lawsuit.

Plaintiffs Jeffrey L. Polisoto and Tracy E. Polisoto are suing St. Gregory the Great Roman Catholic Church, Kaleida Health, and Groundhog Landscaping and Lawncare Inc.

In March 2025, state Supreme Court Justice Donna M. Siwek, in Buffalo, granted the part of the motion of defendant Groundhog Landscaping for summary judgment dismissing the complaint against it and denied the cross-motion of the plaintiffs insofar as it sought to disqualify counsel for defendants St. Gregory the Great Roman Catholic Church and Kaleida Health.

Siwek’s ruling was appealed to the Appellate Division of state Supreme Court, Fourth Department, which unanimously modified the decision by denying the part of the motion from Groundhog Landscaping for summary judgment and reinstating the amended complaint against it.

Jeffrey L. Polisoto allegedly slipped and fell on ice on property owned by defendant St. Gregory and leased to Kaleida Health. The lawsuit was filed to recover damages for injuries suffered by the plaintiffs.

Kaleida had entered into an agreement with Groundhog Landscaping concerning maintenance of Kaleida-owned entities as well as the parking lot at issue.

Groundhog Landscaping moved for summary judgment dismissing the amended complaint against it and any cross claims against it.

The plaintiffs cross-moved for an order disqualifying an attorney and law firm from representing both Kaleida and St. Gregory because of an alleged “conflict of interest.”

Siwek granted that part of Groundhog Landscaping’s motion seeking summary judgment dismissing the amended complaint against it and denied plaintiffs’ cross-motion insofar as it sought disqualification.

St. Gregory and Kaleida had entered into a five-year lease, which was in effect at the time of the incident, whereby St. Gregory provided 325 parking spots in its parking lot for use by the hospital owned by Kaleida in exchange for Kaleida providing, at its sole cost, snow plowing services for all the parking areas of the premises.

It is well established that a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party, the court wrote.

Groundhog Landscaping established that the plaintiffs were not a party to the agreement between it and Kaleida and therefore Groundhog Landscaping did not owe a duty of care to plaintiffs.

The burden shifted to plaintiffs to raise a triable issue of fact.

“We conclude that, viewing the evidence in the light most favorable to plaintiffs, the nonmoving parties, a question of fact exists whether the agreement between Groundhog Landscaping and Kaleida completely displaced Kaleida’s and St. Gregory’s obligation to maintain the parking lot with respect to salting in winter,” the court wrote.

Although the terms of the agreement did not require Groundhog Landscaping to salt the parking lot, the owner and president of Groundhog Landscaping testified that the services included both plowing and salting of the parking lot.

The record also shows that Groundhog Landscaping salted the lot on the day of plaintiff’s alleged fall.

“We conclude that the court erred in granting that part of Groundhog Landscaping’s motion seeking summary judgment dismissing the amended complaint against it, and thus we modify the order by denying that part of Groundhog Landscaping’s motion and reinstating the amended complaint against it,” the court ruled.

With respect to the cross-motion, the court ruled that the plaintiffs lacked standing to move to disqualify counsel for Kaleida and St. Gregory because they did not establish “the existence of a current or prior attorney-client relationship between (them) and opposing counsel.”

Therefore, the court did not err in denying plaintiffs’ request for disqualification.

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