Opinion
8295/01.
Decided May 19, 2004.
Plaintiff, Yery Suh, commenced this action to recover damages for personal injuries allegedly sustained on January 5, 2001 when she slipped and fell on snow and ice that accumulated on the sidewalk adjacent to the building located, at 3508 Johnson Avenue, Bronx, New York. Plaintiff, Jay Suh, has withdrawn his claim for loss of services. The building occupied by Fleet Bank, N.A. (Fleet), as a tenant, was closed when the accident occurred. Plaintiff's complaint charges defendants, Fleet, Midwood Management Corp (Midwood), Frandan Corner LLC, Frandan Johnson LLC and Cosmopolitan Contracting Construction (Cosmopolitan) with negligently failing to remove the snow and ice from the sidewalk adjoining the premises leased to Fleet that allegedly was the proximate cause of the accident which injured the plaintiff.
Defendants' Motions:
Fleet moves, pursuant to CPLR 3212, for summary judgment dismissing plaintiff's complaint. Cosmopolitan also cross moves to dismiss plaintiff's complaint and opposes that branch of Fleet's motion for contribution and or indemnification. Fleet's motion for summary judgment not only seeks a dismissal of plaintiff's complaint, on the allegations addressed to its negligent conduct but Fleet also moves on behalf of defendants Frandan Corner, LLC and Frandan Johnson, LLC the owners of the property leased to Fleet, to dismiss plaintiff's complaint. Fleet presents, in support of its motion, the arguments advanced by its attorney, the pleadings, plaintiff Yery Suh's pre-trial deposition, a copy of Midwood's deposition, the testimony taken at Fleet's deposition, the testimony adduced at Cosmopolitan's pre-trial examination, Fleet's lease agreement, climatological reports, the contract between C.B. Richard Ellis (Ellis) and Cosmopolitan dated November 10, 2000 and two invoices submitted by Cosmopolitan.
Defendant Cosmopolitan in support of its motion submits the affidavit of its vice president and the affidavit of a meteorological expert. Liability of Midwood — Fleet's Management Company:
Plaintiff and defendant Fleet presented affidavits from meteorological experts who were both employed as "senior meteorologists at accu weather" (see Stewart v. Victor Krupitsky 2004 N.Y.Slip op. 02860 [App Div 1st Dept. April 20, 2004] where the court noted "The contrasting opinions raise questions of fact which must be decided by a jury.
Fleet's first argument for dismissal is made on behalf of Midwood, a management company engaged by Fleet, and the owners of the property leased to Fleet described in the complaint as Frandan Corner LLC, and Frandan Johnson LLC (collectively referred to in Fleet's motion papers as "Landlord/Manager").
At the pre-trial deposition of Midwood, its property manager testified that Midwood had no maintenance responsibilities with respect to the Johnson Avenue property leased to Fleet. It is not disputed, by any of the parties, that Fleet through its "manager" Ellis, entered into a contract with Cosmopolitan for the removal of snow and ice regarding its banking facility where the accident occurred. Apart from the bare allegations set forth in plaintiff's complaint that charges Midwood and Frandan, the owner of the property, with negligence no evidence is adduced that would provide a basis to hold Midwood and Frandan liable for the injuries sustained by plaintiff. The testimony offered by Midwood property manager, which is incontroverted, establishes that Midwood never exercised control over the property leased to Fleet and moreover Midwood was not hired or requested to perform maintenance at Fleet branch located at Johnson Avenue.
See Fleet Ex.1-Midwood EBT, p. 8, LL 15-23.
See Fleet Ex.N-Work Order and Contract.
Liability Of Out Of Possession Landlord:
With respect to Frandan, Fleet's landlord, the long standing lease between Fleet and its landlord did not contain any provisions showing that Frandan exercised control over the property or assumed responsibility to maintain the property leased to Fleet. It is also crystal clear that Frandan did not create the condition which caused plaintiff's injury or had notice of the events which plaintiff contends caused the accident.
Clear and unequivocal legal precedent has established that an out of possession landlord cannot be held liable for injuries that occur on the premises unless the landlord retains control over the premises or over the operation of the business conducted on the premises. (See, Putnam v. Stout 38 NY2d, 607 381 NYS2d 848.) Here, no proof is presented that Midwood or Frandan created the condition which caused plaintiff's injuries or had actual land constructive notice of that condition (see Piacquadio v. Recine Realty Corp 84 NY2d 967, 969, 622 NYS2d 493; David v. NYCHA, 284 AD2d 169, 727 NYS2d 404.
As stated by the First Department, Appellate Division, in Velasquez v. Tyler Graphics, Ltd., 214 AD2d 489 (1995):
. . . . Generally, an out-of-possession landlord may not be held liable for a third party's injuries on his premises unless he has notice of the defect and has consented to be responsible for maintenance or repair ( Manning v. New York Tel. Co., 157 AD2d 263, 266-269; see also, Worth Distribs. V. Latham, 59 NY2d 231, 238.) However, constructive notice may be found where an out-of-possession landlord reserves a right under the terms of a lease to enter the premises for the purpose of inspection and maintenance or repair and a specific statutory violation exists ( Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559,566; Worth Distribs. v. Latham, supra; see also, Santiago v. Port Auth., 203 AD2d 217, lv denied 84 NY2d 807; Levy v. Daitz, 196 AD2d 454)."
However, it is also well settled that, in order to maintain the benefit of "out-of-possesion landlord" status, a defendant must show that there is "no evidence that the landlord retained a sufficient degree of dominion and control over the leased premises to provide a basis for the imposition of liability . . . and there is no evidence of any affirmative conduct on the part of the defendant which would show that it had assumed a duty of care toward the plaintiff.". (quoting from Dalzell v. McDonald's Corp., supra, 220 AD2d 638 [2nd Dept. 1995]).
An out-of-possession landlord is liable to persons injured while on his land if there is evidence to establish that the so-called "out-of-possession landlord" had undertaken a course of conduct demonstrating that said landlord has assumed responsibility to maintain the premises, or a particular portion thereof. Such conduct which is not present in the case at bar, creates at least a question of fact that there is also a duty on the part of such a landlord to protect persons on such portions of their land from unreasonable hazards." (See Gelardo v. ASMA Realty Corp., 137 AD2d 787, 525 NYS2d 334 (2nd Dept., 1998).). Consequently, that branch of Fleet's motion to dismiss plaintiff complaint against defendants Midwood and Frandan is granted.
Fleet also moves to dismiss plaintiff complaint that charges Fleet with negligence contending that the snow fall on the day of the accident continued unabated well beyond the time plaintiff said the accident occurred and therefore Fleet argues it can not be held liable since it did not have a reasonably sufficient time after the snow fall ended to remedy the condition. Plaintiff testified, at her examination before trial, that she fell at 6:30 p.m. Meteorological data provided by Fleet, in support of its motion, indicated that the snow continued to 8:52p.m. and therefore, Fleet argues that it can not be held liable for an injury caused by a storm which was in progress at the time of the injury and relies upon the well established principle that "A party in control of real property may be held liable for a hazardous condition created on its premises because of the accumulation of snow or ice only if he or she had a reasonably sufficient time from the cessation of the precipitation to remedy the condition," (Pohl v. Sternberg 259 AD2d 742, 743, 687 NYS2d 431).
Fleet Ex. G, Shu EBT p. 20 L10.
Fleet Ex.L-Hourly Precipitation Data (Meteorological Records).
Generally, an abutting owner owes no duty to pedestrians to remove accumulations of snow and ice from the sidewalk (see, Dambrosio v. City of New York 55 NY2d 454, 462; 450 NYS2d 149; Roark v. Hunting 24 NY2d 470, 301 NYS2d 59.; Verdino v. Alexandrou 253 AD2d 552, 677 NYS2d 368) and this rule applies even where the abutting owner fails to comply with a statute or ordinance which requires the property owner to remove the snow (Administrative Code of the City of New York § 16-123). Plaintiff argues that this rule does not apply to in the case at bar since Cosmopolitan, the contractor hired by Fleet to remove the snow, created a dangerous condition which increased the natural hazard caused not only by the snowfall on January 5, 2001 but Cosmopolitan's failure to properly clear the extensive 15 inch snow fall that occurred during the period December 30, 2000 and December 31, 2000. Although it appeared that no snow fell in the Bronx on January 1, 2001 through January 4, 2001 plaintiff expert states in his affidavit that the shifting temperature after the December 30, and December 31, 2000 snow fall caused "natural melting which refroze and caused patches of ice to develop covered by the snow fall that occurred on January 5, 2001. Cosmopolitan, pursuant to its agreement with Fleet's Agent, (Ellis) it agreed to remove snow from the sidewalk adjacent to Fleet Bank on Johnson Avenue and Fleet maintains that Cosmopolitan's failure to properly perform its snow removal obligation does not make Fleet liable unless Fleet was aware or had knowledge of the condition caused by Cosmopolitan's failure to perform.
Effective September 15, 2003, Administrative Code of the City of New York was amended shifting the burden of maintaining the sidewalk to the property owner.
PL Ex. B: Sobel Aff.
It is undisputed that Cosmopolitan removed snow, in accordance with its contract obligation, between December 30, 2000 and January 2, 2001. It is also undisputed that large accumulations of snow fell commencing on December 30, 2000 and continued at a rapid pace into December 31, 2000 Plaintiff's expert reviewed the climatological data during this period and stated that eleven to fifteen inches of snow had fallen and Fleet does not challenge plaintiff's deposition testimony where plaintiff stated that the path she walked on was two or three feet wide that was covered with one and one half inches of snow. Fleet's contract with Cosmopolitan provided, inter alia, that Fleet would "at all times have access to the work" performed or undertaken by Cosmopolitan and all work (without further description) was subject to inspection by Fleet. In addition, paragraph 13 of the contract (id) obligated Cosmopolitan to indemnify and hold Fleet harmless against claims arising out of "this contract" or the performance of work undertaken by Cosmopolitan. Fleet's unimpeded right to inspect Cosmopolitan's snow removal raises issues of fact regarding Fleet's culpability regarding plaintiff's injury.
Fleet Daub Aff. ¶ 25.
PL Sobel Aff. ¶ 4.
Fleet Ex.F Shu EBT p31 L5 p32 L18.
Fleet Ex. N ¶ 12.
Plaintiff's cause of action against Cosmopolitan is based on the contention that Cosmopolitan created a hazardous condition by failing to properly remove the snow including the failure to apply salt spreading which caused plaintiff's injury. (Brownwell v. City of New York 277 AD2d 31, 715 NYS2d 405 lv. denied, 96 NY2d 712; Figueroa v. Lazarus Berman Associates 269 AD2d 215, 703 NY2d 113). Plaintiff expert's interpretation of the climatologist data supports plaintiff's contention that the snow, evident on the day of the accident, covered the ice patches formed from the prior storm. Liability for ice or snow related injury will result if it is shown by the evidence that the sidewalk was made more dangerous by the negligent or improper shoveling of the sidewalk. ( Velez v. City of N.Y. 257 AD2d 570, 683 NYS2d 583)
PL Sobel Aff.
Fleet reliance upon the snow in progress rule is unavailing. (Pohl v. Sternberg 259 AD2d 742, 743, 687 NYS2d 431). The lease agreement entered into by Fleet imposed broad and continuous obligations upon Fleet to maintain the property including the sidewalk adjacent to the bank. The maintenance clause absolves the owner of the property from performing "any service" or repairs to the demised premises and places upon Fleet the full and sole responsibility for the operation, repair, replacement [and] maintenance" of the entire premises. Therefore, Fleet by the terms of its lease under took to clear the sidewalk of snow and ice which extended not only to its customers but to members of the public who used the sidewalk adjacent to the leased property. Fleet recognized its obligation to maintain the property and to clear snow and ice by virtue of its agreement with Cosmopolitan who was retained by Fleet to perform such tasks on its behalf. It is also evident that Fleet's employees were fully cognizant of when and who to contact when snow accumulated. The testimony provided by Fleet's witness, Brennan, made it evident that when snow accumulated Ellis, Fleet's Agents, would be called by anyone on the "platform" to remove the snow and Ellis would in turn contact Cosmopolitan to clear the condition. For the reasons set forth Fleet's motion addressed to dismissing the plaintiff's complaint is denied.
Fleet Ex.H-Brenner, EBT, p10 LL-21-25.
Fleet Ex.H-Brenner, EBT p. 11 LL18-21; p12 L13-15.
Liability of Cosmopolitan — Fleet's Maintenance Contractor:
Turning to Cosmopolitan's motion, it is undisputed that Cosmopolitan contracted with Fleet to, inter alia, remove snow at various locations including the bank's branch on Johnson Avenue, the site of plaintiff's accident. This contract however, was not limited to snow removal but included extensive maintenance and repair obligations. Cosmopolitan supports its demand for dismissal referring this Court to the law stated in Espinal v. Melville Snow Contractors 98 NY2d 136, 746 NYS2d 120 arguing that it owed no duty to the plaintiff since its contract with Fleet was not a comprehensive maintenance obligation. In Espinal, supra, Judge Rosenblatt writing on behalf of the Court, stated that to support a finding of negligence the threshold question in tort cases is whether the alleged tort feaser owed a duty of care to the injured party, (citing Darby v. Compagnie Natl. Air France 96 NY2d 343, 347, 728 NYS2d.
The Espinal court's resolution of this threshold issue took into consideration the need to balance competing public policy considerations which must be measured against extending open ended tort liability citing Palka v. Servicemaster Mgt. Servs. Corp 83 NY2d 579, 585-586, 611 NYS2d 817; Strauss v. Belle Realty Co, 65 NY2d 399, 492 NYS2d 555. The plaintiff in Espinal, supra, commenced a personal injury action seeking damages against the contractor who entered into a snow removal contract with the property owner of a parking lot where the plaintiff fell. The complaint alleged that the contractor created the icy condition by negligently failing to remove the snow from the parking lot and that plaintiff's injury was caused by the icy condition. The court held that the contractual obligation to remove snow from the parking lot standing alone did not expose the contractor to tort liability (Citing Eaves Brooks, 76 NY2d at 226, 557 NYS2d 286).
Cosmopolitan also refers to the determination rendered in Church v. Callanan Industries Inc. 99 NY2d 104, 752 NYS2d 254 and Baher v. Shelter Express 298 AD2d 320 748. NYS2d 859 [App Div 1st Dept., 2002]). The Court in Church, supra and Baher revisited the issue regarding whether a duty was owed to the injured plaintiff. The court in Church, supra, looked to the manner in which the driver operated his automobile as a cause of the accident and in Baher the court looked to the maintenance agreement which the court noted was "neither exclusive nor comprehensive" and therefore, did not give rise to a maintenance obligation enforceable by the general public. Here, in the case at bar, Cosmopolitan's maintenance obligation was not limited to snow removal. The contract included the comprehensive obligation that Cosmopolitan would procure and maintain all necessary permits, comply with all applicable laws relating to hazardous of toxic materials and also warranted the work it agreed to perform. In addition, the contract required Cosmopolitan to maintain minimum insurance requirements for workers compensation, commercial general liability coverage and automobile liability insurance. Such provisions including Cosmopolitan's obligations undertaking any maintenance repairs were clearly, as the court noted in Baher exclusive and comprehensive.
The factual issues presented in Palka, supra are analogous to the issues presented in the case at bar. In Palka, the court scrutinized the agreement with the maintenance company and held that comprehensive nature of the contract created a duty of care to the plaintiff who was injured when a wall mounted fan fell on her as she was tending to a patient. The contract required the maintenance company to inspect, repair and maintain the facility. Where actions are brought by an injured party premised on the negligent performance of the party who contracted to provide a service the court is required to determine whether the contractual obligations undertaken were comprehensive. Here, Cosmopolitan's contract meets the standard outlined in Palka, supra.
For the reasons stated including the factual issue regarding the condition of the snow path on the sidewalk at the time of the occurrence, the work performed by Cosmopolitan after the snow fall on December 30 and December 31, 2000 and weather conditions then and there existing require a resolution at a trial. Therefore, Cosmopolitan's motion to dismiss the complaint is denied.
Summary Judgment:
The proponent of a motion for summary judgment carries the initial burden to tender sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. (Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923, 501 N.E.2d [1986].) Once that initial burden has been satisfied, the burden shifts to the opponent, who must now go forward and produce sufficient evidence in admissible form to establish the existence of a triable issue of fact. The burden, however, always remains where it began, i.e., with the proponent of the issue. Thus "if the evidence on the issue is evenly balanced, the party that bears the burden must lose." (Director, Office of Workers Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994); 300 East 34th Street Co. V. Habeeb, 248 AD2d 50, NYS2d 175 [1st Dept. 1997].)
The role of the court is to determine if bona fide issues of fact exist, and not to resolve issues of credibility. As the Court state in Knepka v. Talman, 278 AD2d 811, 718 NYS2d 541 [4th Dept. 2000]):
". . . Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint (see, Mickelson v. Babcock, 190 AD2d 1037, 593 NYS2d 657; see generally, Black v. Chittenden, 69 NY2d 665, 511 NYS2d 833, 503 N.E.2d 1370; Capelin Assocs. V. Globe Mfg.Corp., 34 NY2d 338, 341,357 NYS2d 478,313 N.E.2d 776). any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted to the motion Present credibility issues for trial (see, Schoen v. Rochester Gas Elec., 242 AD2d 928, 665 NYS2d 372; Mickelson v. Babcock, supra)."
(See also, Yaziciyan v. Blancato, 267 AD2d 152, 700 NYS2d 33 [1st Dept.]; Perez v. Bronx Park South Associates, 285 AD2d 402, 728 NYS2d 33 [1st Dept. 2001; Glick Dullock v. Tri-Pac Export Corp., 22 NY2d 439, 441; Singh v. Kolcaj Realty Corp., 283 AD2d 350, 725 NYS2d 37 [1st Dept. 2001].)
The court's function in determining a motion for summary judgment is issue finding rather than issue determination. ( Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395, 144 N.E.2d 387, 165 NYS2d 49). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue Rotuba Extruders v. Ceppos, 46 NY2d 223, 385 N.E.2d 1068, 413 NYS2d 141.) Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied. ( Stone v. Goodson, 8 N.Y.2D8, 167 n.e.2D 328, 200 n.y.s.2D 627 [1960]; Sillman v. Twentieth Century Fox Film Corp., supra) Here the issues presented and previously discussed in this opinion warrant denial of both Fleet's motion and Cosmopolitan's motion to dismiss plaintiff's complaint.
Summary Judgment for Claims of Contribution and Indemnification:
With respect to Fleet's motion for summary judgment on the cross claims, asserted against Cosmopolitan, Fleet contends that it should be held harmless for damages sustained by the plaintiff which arose from the negligence of Cosmopolitan in the performance of the contractual obligation to remove snow from the sidewalk at 3508 Johnson Avenue, Bronx, New York. Fleet opposing cosmopolitan's motion points to its contractual agreement with Cosmopolitan, which specifically states that Cosmopolitan "agrees to defend indemnify and hold harmless [Fleet] against any claims, damages . . . arising out of this contract or the performance of the work . . ."
Fleet. Ex N, ¶ 13, Work order and Contract
It is well settled that a party is not entitled to summary judgment on its claims of indemnification where an issue of fact concerning that party's possible proximate negligence remains unresolved. (See, generally, Kelly v. Diesel Constr.Div., 35 NY2d 1,6; Guillory v. Nautilus Real Estate, 208 AD2d 336,339, lv denied 86 NY2d 881; Brezinski v. Olympia York Water St. Co., 218 AD2d 633). A contract which purports to provide for the indemnification of a negligent party is, itself, null and void pursuant to General Obligations Law Section 5-322.1 Public policy considerations clearly support such a rule of law.
Consequently, in order to prevail in such a summary judgment request, the law places on the proponent the burden of affirmatively proving its lack of negligence proximate to the underlying accident or injury. As stated in Reynolds v. County of Westchester, 270 AD2d 473 (2nd Dept., 2000):
". . . Pursuant to General Obligations Law § 5-322.1, any construction contract purporting to indemnify a party for its own negligence is void and unenforceable, although contracts requiring parties to procure insurance are not similarly void (see, Kinney v. List Co., 76 NY2d 215). Consequently, a party to a contract who is a beneficiary of an indemnification provision must prove itself to be free of negligence; to any extent that the negligence of such a party contributed to the accident, it cannot be indemnified therefor (see, Kennelty v. Darling Constr., 260 AD2d 443; Stein v. Yonkers Contr., 244 AD2d 476; Dawson V. Pavarini Constr. Co., 228 AD2d 466))."
Likewise, more recently in Daniels v. Bohn/Fiore, Inc., 300 AD2d 341 (2nd Dept.,2002), the Second Department, Appellate Division affirmed the lower court's denial of summary judgment to a owner/general manager and, in doing, reaffirmed Reynolds, supra, and held:
". . . The appellants may seek contractual indemnification thosewhose negligence was responsible for the plaintiff's injuries (see Lazarro v. MJM Indus., 288 AD2d 440; Kennelty v. Darling Constr., 260 AD2d 443) to the extent that the appellants do not seek indemnification for their own acts of negligence (see Kennelty v. Darling Constr., supra at 446; General Obligations Law § 5-322.1). In the instant case, the appellants failed to establish, as a matter of law, that they were free of negligence contributing to the plaintiff's accident (see Reynolds v. County of Westchester, 270 AD2d 473). Accordingly, the Supreme Court correctly denied the appellants summary judgment on their cross motion for contractual indemnification . . ."
Accordingly, Fleet's motion for summary judgment on its claim for indemnification is denied.
This constitutes the decision and order of the court.