WILSON v. Melville Snow Contractors, Inc., third-Party defendant-Appellant-respondent. (2018)

DECISION & ORDER

In an action to recover damages for personal injuries, the third-party defendant appeals, and the defendants third-party plaintiffs cross-appeal, from an order of the Supreme Court, Nassau County (Anthony L. Parga, J.), entered June 27, 2016.  The order, insofar as appealed from, denied that branch of the third-party defendant's motion which was for summary judgment dismissing the third-party cause of action for contractual indemnification.  The order, insofar as cross-appealed from, denied the defendants third-party plaintiffs' motion for summary judgment dismissing the complaint and granted that branch of the third-party defendant's motion which was for summary judgment dismissing the third-party cause of action for common-law indemnification.

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs to the plaintiff, payable by the defendants third-party plaintiffs.

The plaintiff allegedly sustained personal injuries when she slipped and fell on black ice in the parking lot of Nassau University Medical Center at approximately 6:55 a.m. on February 11, 2013, when she was on her way to work.  She commenced this personal injury action against the defendants, Nassau University Medical Center and Nassau Health Care Corporation.  The defendants in turn commenced a third-party action against Melville Snow Contractors, Inc. (hereinafter Melville), the contractor the defendants had hired to plow and salt the premises.  After the completion of discovery, the defendants moved for summary judgment dismissing the complaint, and Melville moved, inter alia, for summary judgment dismissing the third-party complaint.  The Supreme Court denied the defendants' motion for summary judgment dismissing the complaint.  The court granted that branch of Melville's motion which was for summary judgment dismissing the third-party cause of action for common-law indemnification and denied that branch of Melville's motion which was for summary judgment dismissing the third-party cause of action for contractual indemnification.  Melville appeals, and the defendants cross-appeal.

“A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence” (Cuillo v. Fairfield Prop. Servs. L.P., 112 A.D.3d 777, 788, 977 N.Y.S.2d 353).  Accordingly, a property owner seeking summary judgment in a slip-and-fall case “has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” (Castillo v. Silvercrest, 134 A.D.3d 977, 977, 24 N.Y.S.3d 86).

On their motion for summary judgment, the defendants failed to meet their burden of eliminating all triable issues of fact as to whether the alleged dangerous condition was created by their snow removal efforts prior to the accident (see Smith v. New York City Hous. Auth., 124 A.D.3d 625, 625, 1 N.Y.S.3d 296).  Since the defendants failed to meet their burden, we agree with the Supreme Court's determination to deny their motion for summary judgment dismissing the complaint (see id.;  see also Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).

On its motion for summary judgment, Melville failed to establish its prima facie entitlement to judgment as a matter of law dismissing the third-party cause of action for contractual indemnification.  Specifically, Melville failed to establish, prima facie, that it was free from negligence in creating the black ice condition or that the defendants were negligent in creating the condition (see Dautaj v. Alliance El. Co., 110 A.D.3d 839, 841, 972 N.Y.S.2d 691;  Robles v. Bruhns, 99 A.D.3d 980, 982, 953 N.Y.S.2d 143;  Brennan v. R.C. Dolner, Inc., 14 A.D.3d 639, 639, 789 N.Y.S.2d 312;  cf. Castillo v. Port Auth. of N.Y. & N.J., 159 A.D.3d 792, 795–796, 72 N.Y.S.3d 582;  Morris v. Home Depot USA, 152 A.D.3d 669, 672–673, 59 N.Y.S.3d 92;  Tingling v. C.I.N.H.R., Inc., 120 A.D.3d 570, 571, 992 N.Y.S.2d 43).  Accordingly, we agree with the Supreme Court's determination to deny that branch of Melville's motion which was for summary judgment dismissing the third-party cause of action for contractual indemnification.

We also agree with the Supreme Court's determination to grant that branch of Melville's motion which was for summary judgment dismissing the third-party cause of action for common-law indemnification.  Melville established, prima facie, that the plaintiff's injuries were not caused by Melville's negligence in the performance of an act that was solely within Melville's province.  In opposition, the defendants failed to raise a triable issue of fact (see Konsky v. Escada Hair Salon, Inc., 113 A.D.3d 656, 657–658, 978 N.Y.S.2d 342;  cf. Abramowitz v. Home Depot USA, Inc., 79 A.D.3d 675, 677, 912 N.Y.S.2d 639).

The defendants' and Melville's remaining contentions are without merit.

BALKIN, J.P., SGROI, LASALLE and BARROS, JJ., concur.