ZEMOTEL v. JELD WEN INC (2008)

 Plaintiffs commenced this action seeking damages for injuries sustained by Paul A. Zemotel (plaintiff) when he slipped and fell on ice beneath a puddle of water in the back lot of a store owned by defendant-third-party plaintiff (hereafter, Jeld-Wen).   Supreme Court properly denied Jeld-Wen's cross motion for summary judgment dismissing the complaint.   Jeld-Wen failed to meet its “initial burden of establishing that it did not create the dangerous condition that caused plaintiff to fall and did not have actual or constructive notice thereof” (Quinn v. Holiday Health & Fitness Ctrs. of N.Y., Inc., 15 A.D.3d 857, 857, 789 N.Y.S.2d 782;  see Kimpland v. Camillus Mall Assoc., L.P., 37 A.D.3d 1128, 829 N.Y.S.2d 354).   In any event, even assuming, arguendo, that Jeld-Wen met its initial burden, we conclude that plaintiffs raised an issue of fact to defeat the motion.   Contrary to Jeld-Wen's contention, the expert affidavit submitted by plaintiffs was not speculative and was properly based on data from the National Climatic Data Center (see CPLR 4528).   That affidavit raised an issue of fact concerning Jeld-Wen's constructive notice of the alleged dangerous condition, i.e., whether that condition was present “for a sufficient length of time prior to the accident to permit [Jeld-Wen's] employees to discover and remedy it” (Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774).

 We further conclude that the court properly granted the motion of third-party defendant (hereafter, Michels) for summary judgment dismissing the third-party complaint.   With respect to that part of the first cause of action seeking common-law contribution, Michels met its initial burden and Jeld-Wen failed to demonstrate how Michels “may be said to have assumed a duty of care-and thus be potentially liable in tort-to third persons” based on the snowplowing contract with Jeld-Wen (Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485).   To the contrary, the record establishes that Michels could not plow or salt the back lot unless a Jeld-Wen employee unlocked a gate allowing him access to the back lot and that, when Michels had not plowed or salted, Jeld-Wen employees would shovel and salt the back lot.   We thus conclude that Jeld-Wen failed to establish that Michels “owed [it] a duty of reasonable care independent of its contractual obligations or that [Michels] breached a duty of due care owed directly to plaintiff[ ]” (Nizam v. Friol, 294 A.D.2d 901, 902, 741 N.Y.S.2d 805;  see Phillips v. Young Men's Christian Assn., 215 A.D.2d 825, 827, 625 N.Y.S.2d 752).   Further, to the extent that the first cause of action is based on a theory of “implied indemnity,” that theory also fails because Jeld-Wen reserved authority to salt the back lot when needed, and that retention of responsibility and control “defeats its implied indemnity claim as a matter of law” (Salisbury v. Wal-Mart Stores, 255 A.D.2d 95, 98, 690 N.Y.S.2d 156).   With respect to the second cause of action, for contractual indemnification, the contract does not contain an indemnification clause, and thus there is no basis for the imposition of liability against Michels on that ground (see Rosado v. Proctor & Schwartz, 66 N.Y.2d 21, 25, 494 N.Y.S.2d 851, 484 N.E.2d 1354).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: