In doing so, the court made reference to the contract between the snow removal contractor and the premises owner with regards to the required conduct of the snow removal contractor. The court also noted that a written agreement may always be modified by subsequent conduct of the parties indicating a new or different intent under the contract.
In this matter, the Plaintiff allegedly fell on an isolated patch of ice that was allegedly created by a dripping overhang near the entrance of a store.
While the court found that the snow removal contractor was not liable under the contract between the parties to remedy the dripping overhang in the absence of evidence that the snow removal contractor was requested to do so, Judge Nealon found that evidenced in the record indicated that recent trace amounts of snow fall had fallen on the premises which could be found by the jury to have triggered a duty on the part of the snow removal contractor to visit and maintain the premises.
Accordingly, the court found that a triable issue of fact existed as to whether the snow removal contractor would have observed and treated the ice patch from which the Plaintiff allegedly fell if he had visited the property to address the recent snow fall. As such, the motion for summary judgment filed on behalf of the snow removal contractor was denied.
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