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Hassina RAY, Plaintiff, v. APPLE SQUARE LLC., JPMorgan Chase Bank National Association, and McGuire's Service Corp., Defendants.
JPMorgan Chase Bank, N.A., s/h/a JPMorgan Chase Bank National Association, Third Party Plaintiff, v. McGuire's Service Corp., Third Party Defendant.
The following papers numbered 1 to 16 read on the below motions noticed on October 3, 2017 and November 14, 2017 and duly submitted on the Part IA15 Motion calendar of January 3, 2018:
McGuire's' Notice of Motion, Aff. In Support, Exhibits 1,2,3
Apple/Chase's Aff. In Opp., Exhibits 4,5
Pl.'s Aff. In Opp., Exhibits 6,7
McGuire's Reply Aff. 8
Apple/Chase's Notice of Motion, Aff. In Support, Exhibits 9,10,11
McGuire's Partial Opp. 12
Pl.'s Aff. In Opp., Exhibits 13,14
Apple/Chase's Reply to Plaintiff 15
Apple/Chase's Reply to McGuire's 16
Upon the forgoing papers, defendant/third-party defendant McGuire's Service Corp. (“McGuire's) moves for an order (1) pursuant to CPLR 3212, granting summary judgment in its favor, dismissing the plaintiff's complaint and any and all cross-claims asserted against it; and (2) dismissing the third-party action. The plaintiff Hassina Ray (“Plaintiff”) opposes the motion. Defendant Apple Square LLC. (“Apple”) and defendant/third party plaintiff JPMorgan Chase Bank, N.A., s/h/a JPMorgan Chase Bank (“Chase”) partially oppose the motion.
In a separate motion, defendants Apple and Chase move for summary judgment, (1) dismissing Plaintiff's complaint and any cross-claims asserted against them in their entirety, or in the alternative; (2) on their cross-claims for common-law indemnification, contribution and/or contractual indemnification over and against co-defendant/third party defendant McGuire's. Plaintiff opposes the motion. McGuire's partially opposes the motion.
In the interest of judicial economy, these two motions are consolidated and disposed of in the following decision and order.
Plaintiff alleges that on February 20, 2014 at approximately 9:14 A.M. she slipped and fell on a patch of ice in a parking lot located at 675 Coop City Blvd., Bronx, New York. Plaintiff thereafter commenced this action against the proper owner Apple and the commercial tenant Chase. Chase then commenced a third party action against the snow removal contractor, McGuire's, alleging causes of action for common law contribution and indemnification, contractual indemnification, and breach of contract. Plaintiff then amended her complaint and added McGuire's as a direct defendant.
Plaintiff testified that it was sunny on the date of her accident, and it had snowed two days earlier. Plaintiff drove her vehicle into Chase's parking lot and did not observe any snow or ice. She backed into a particular parking spot because it appeared to be clear and free from snow or ice, and she thought that it was safe. Plaintiff then exited her vehicle. As she attempted to close the driver door, she slipped and fell to the ground. Plaintiff did not look at the ground before she got out of the car, but after she fell, she first noticed that she had slipped on ice. Plaintiff testified that the ice was transparent and looked black like the ground. She could not give the thickness of the ice, but she described it as stretching approximately 4–5 feet from where she was seated, and extended underneath her vehicle. Plaintiff did not see salt anywhere in the area where she fell. Plaintiff did not know how long the ice condition had existed and did not know how it was created. Prior to her fall, Plaintiff had not complained to anyone at the Chase bank about the condition of the parking lot.
Michael Rodriguez testified on behalf of Chase. Mr. Rodriguez stated that he was employed by nonparty Jones Lang LaSalle as a facilities manager responsible for managing dozens of properties including the loss location. Chase employees would notify him if something needed to be done at the premises. Mr. Rodriguez testified that he would perform bi-monthly inspections at the location, but he could not recall the last time he performed such an inspection before this accident occurred. While performing this bi-monthly inspection, Mr. Rodriguez would look for snow and /or ice conditions. If he saw a snow condition that needed to be corrected, he would put in a work order with McGuire's. He further testified that Chase employees did not do any snow removal themselves. In the event of a snowfall, McGuire's was contractually obligated to monitor the conditions and to come out and perform snow removal services. Mr. Rodriguez testified that if someone made a complaint about snow or ice in the parking lot, they would have to contact Chase's branch manager, who would then dispatch a work order directly to McGuire's. He stated that he had not directly received any complaints about the property in February 2014.
Edward Dempsey appeared for deposition on behalf of McGuire's. Mr. Dempsey testified that McGuire's performed snow removal at the loss location in February 2014. However, he did not know which McGuire's employees performed these services, when McGuire's had serviced the accident location, or how the snow was plowed at the subject location before the accident occurred. He testified that McGuire's would plow the snow in the parking lot and pile it along the curbs near the parking spaces, and they would also apply ice melt. He was not familiar with the existing service agreement between McGuire's and Chase. Mr. Dempsey himself had not received any complaints regarding the manner in which McGuire's performed its work, but he did not know whether other employees at McGuire's had received complaints.
In support of its motion, McGuire's relies on the above deposition testimony, an affidavit from its president Tina McGuire, and a logbook entry. Ms. McGuire states that McGuire's was only required to return to a job site that they had previously plowed if they were requested to do so by a client. She states that according to the log book, the last time McGuire's was at the loss location was February 18, two days before the accident occurred. The logbook states that at approximately 4:00AM Chase requested McGuire's to pre-salt. From 4:00AM to 400 PM, McGuire's was salting and cleaning all stops on its route including Chase. Ms. McGuire states that no one requested McGuire's to return to the site after this work was performed.
At the time of the accident McGuire's and Chase had a services agreement in effect. According to this agreement, McGuire's was to indemnify Chase for its breach of warranties as set forth in the agreement, or for the negligent, willful or reckless acts or omissions of its employees. The agreement also stated that McGuire's would obtain commercial general liability insurance naming Chase as an additional insured.
McGuire's provides certified weather records at the date and time of the accident. According to those records, the day before the accident, it did not snow and there was .26 inches of rainfall, and the temperature did not drop below freezing. On the date of the accident, it rained .03 inches and the minimum temperature was 37 degrees Fahrenheit.
McGuire's now moves for summary judgment, seeking dismissal of Plaintiff's complaint and dismissal of any cross-claims as well as the third party complaint. McGuire's argues that the defect at issue is not actionable because it is black ice, and Plaintiff's testimony confirmed that this condition was not visible and apparent before her accident occurred. McGuire's further asserts that Plaintiff's direct claims against it must be dismissed because, as a snow removal contractor, it owed Plaintiff no direct duty, and none of the exceptions to this general rule apply. Regarding the third-party complaint, McGuire's argues that Chase cannot maintain its contribution claims because McGuire's did not owe a duty of reasonable care outside of its contractual obligations. Chase's common law and contractual indemnification claims must be dismissed because Chase cannot establish that any action or conduct from McGuire's caused this accident. McGuire's performed its job in accordance with the contract and they were never called back to return to the accident site. McGuire's also contends that Chase's breach of contract claims must be dismissed because McGuire's in fact had procured the requisite insurance as required by the contract before this accident occurred.
Chase/Apple also move for summary judgment. These defendants first assert that Apple bears no liability here because it is an out of possession landlord with no contractual obligation to maintain the premises. Defendants provide testimony indicating that Apple had no actual notice of any hazardous condition at the premises. Furthermore, according to the lease agreement in effect at relevant times, tenant Chase was exclusively responsible for maintaining the premises. The defendants further contend that Chase bears no liability for this accident because they did not create and lacked any actual or constructive notice of the alleged ice condition on the parking lot. Chase asserts that the testimony from Plaintiff herself establishes that the ice was not visible and apparent and therefore Chase had no constructive notice of it. Relying on inter alia, the testimony from Mr. Rodriguez, Chase asserts that it also did not create and lacked any actual notice of the condition.
In the alternative, Chase asserts that it is entitled to summary judgment on its claims against McGuire for common law indemnification, contribution, and/or contractual indemnification. Chase asserts that McGuire's was contractually obligated to remove snow and ice from the loss location, and Chase itself did not perform any snow removal activities on the premises. Thus, if a dangerous snow or ice condition existed, it was solely due to the negligence of McGuire's personnel. According to the service agreement, McGuire's specifically agreed to indemnify and hold harmless Chase from damages caused by McGuire's.
In opposition to McGuire's motion to dismiss the third party complaint, Chase asserts that McGuire's failed to demonstrate that its snow removal efforts did not “launch the force or instrument of harm.” The log books and affidavit from Tina McGuire are self-serving and conclusory and lack any detail, and Mr. Kempsey did not have personal knowledge as to what was done on the property and he did not inspect the property after the alleged snow and ice removal operations were completed. Chase further asserts that the services agreement between itself and McGuire's indicates that McGuire's was supposed to respond automatically in the event of snow and no one from Chase was required to contact them to request such services. Chase thus contends that McGuire's is not entitled to dismissal of Chase's contribution and indemnification claims. Chase also argues that there are questions of fact as to whether McGuire's breached its contract with the Chase defendants by failing to procure the requisite amount of commercial general liability coverage, and thus this branch of McGuire's motion should also be denied.
In opposition to Chase's motion for summary judgment on their cross-claims, McGuire's asserts that Chase is not entitled to common law contribution because McGuire's did not owe a duty of care independent of its contractual obligations. On the issue of indemnification, McGuire's asserts that there is no evidence that McGuire's was negligent or caused Plaintiff's injuries, as their work was “inspected, approved, and paid for by Chase” and McGuire's was not called back to return to the site, and McGuire's had no contractual obligation to monitor the property to re-apply salt to treat re-freezing conditions. Further, McGuire's asserts that Chase is not entitled to common law indemnification if this Court decides that there are issues of fact as to Chase's negligence.
Plaintiff opposes both summary judgment motions. Regarding Apple/Chase, Plaintiff asserts that those defendants did not carry their initial burden because they failed to present evidence that they lacked constructive notice of the ice condition that caused this accident. The only witness produced by Chase testified that he only inspected the premises twice per month and other than himself and McGuire's, there was no other person or entity responsible for inspecting the premises for ice. Apple/Chase produced no witness from the branch itself for testimony, even though they were ordered to do so. Thus, the defendants did not present admissible evidence as to when the premises was last inspected before the accident occurred. In addition, defendants cannot meet their burden as to whether they received complaints about the ice, as they failed to proffer evidence from the branch manager—the person who was charged with receiving such complaints. Plaintiff further relies on her deposition testimony as well as an affidavit attesting inter alia that the ice condition was approximately eight feet wide and extended underneath her car, there was no sand and salt in the area, and the area appeared to be poorly plowed as the ice “contained small ridges that appeared to have been created by a plow․,” and that she could see it once she was out of her vehicle. Plaintiff contends that at the very least there are questions of fact as to whether the ice existed for a sufficient length of time. Regarding McGuire's motion, Plaintiff asserts that they admitted that they performed snow removal two days before the accident, but they never disclosed which employees actually performed the work and have produced no evidence that the work was completed in a satisfactory manner. McGuire's produced no evidence as to the condition of the parking lot between the time that they were there up until the time of the accident.
Apple/Chase and McGuire's submit affirmations in further support of their motions and in reply to Plaintiff's contentions. Those arguments have been considered and are specifically addressed infra if necessary.
II. Standard of Review
To be entitled to the “drastic” remedy of summary judgment, the moving party “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case.” (Winegrad v. New York University Medical Center, 64 NY2d 851 ; Sillman v. Twentieth Century–Fox Film Corp., 3 NY2d 395  ). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. (Id., see also Alvarez v. Prospect Hosp., 68 NY2d 320, 324  ). Facts must be viewed in the light most favorable to the non-moving party (Sosa v. 46th Street Development LLC., 101 AD3d 490 [1st Dept. 2012] ). Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact (Zuckerman v. City of New York, 49 NY2d 557  ). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v. Restani Constr. Corp., 18 NY3d 499  ). If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. (Bush v. Saint Claire's Hospital, 82 NY2d 738  ).
III. Applicable Law and Analysis
A. Apple/Chase's Motion for Summary Judgment
Generally, a landowner owes a duty of care to maintain his or her property in a reasonably safe condition (see Peralta v. Henriquez, 100 NY2d 139  ). This duty, however, is premised on the landowner's exercise of control over the property, since the entity in control of the property is in the best position to identify and prevent harm to others (Butler v. Rafferty, 100 NY2d 265  ). Therefore, a landowner who transfers possession and control is generally not liable for injuries caused by dangerous conditions on the property (Chapman v. Silber, 97 NY2d 9  ). Exceptions to this general rule apply when the landlord is either contractually obligated to maintain the premises or has a contractual right to re-enter, inspect, and make repairs at the tenants expense, and liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision (see Johnson v. Urena Service Center, 227 AD2d 325 [1st Dept. 1996]; Heim v. Trustees of Columbia Univ., 81 AD3d 507 [1st Dept. 2011] ).
In this case, Apple demonstrated that it is an out of possession landowner who had no contractual obligation to maintain this property (see Reyes v. Morton William Assoc. 50 AD3d 496 [1st Dept. 2008]; see also Jean–Baptiste v. 153 Manhattan Ave. Housing Dev. Fund Corp., 124 AD3d 476 [1st Dept. 2015] ). Apple satisfied its initial burden by submitting a copy of the subject lease agreement which provided that its tenant Chase was responsible for all costs, expenses, and obligations of any kind with respect to Chase's occupancy or operation of the premises, including maintaining the interior and exterior of the premises in good condition at all times (Lease at Article 8—Use, Maintenance and Repairs—8.2 Maintenance and Repairs) (see Nielsen v. 300 East 76th Street Partners, LLC., 111 AD3d 414, 414 [1st Dept. 2013][defendant demonstrated out of possession status by submitting copy of the lease], citing Devlin v. Blaggards III Rest. Corp., 80 AD3d 497 [1st Dept. 2011], lv. den., 16 NY3d 713  ). Apple also submitted an affidavit from an employee of its property management company who averred that prior to February 20, 2014, Apple did not perform any snow removal operations at the premises, did not hire anyone to perform such operations, never received any complaints with regard to snow and ice conditions in the parking lot, was not aware of any prior slip and fall accidents in the subject parking lot, and never received any violations from the City of New York regarding a snow and ice condition in the parking lot. The foregoing establishes prima facie that Apple relinquished control of the subject premises and thus it did not create or have any notice of the allegedly hazardous ice condition that caused Plaintiff's injuries (see Sapp v. S.J.C. 308 Lenox Ave. Family L.P., 150 AD3d 525, 527 [1st Dept. 2017];Marchese v. Fresh Meadows Assoc., 207 AD2d 871 [2nd Dept. 1994] ).
McGuire's takes no position with respect to Apple's entitlement to summary judgment. Plaintiff's opposition papers fail to specifically address Apple's out of possession landlord status, and fails to raise any issue of fact as to whether Apple created or had any notice of the ice condition. An out of possession landowner such as Apple can only be charged with constructive notice of a hazardous condition where the landowner retained the right to re-enter the premises, and the hazard constituted a significant structural or design defect that is contrary to a specific statutory safety provision (see, e.g., Sapp v. S.J.C. 308 Lenox Ave. Family L.P., 150 AD3d at 528). Even assuming that Apple did in fact retain a right to re-enter the premises—which is not alleged by Plaintiff—an icy condition does not constitute a significant structural or design defect (see Bing v. 296 Third Ave. Group, L.P., 94 AD3d 413, 414 [1st Dept. 2012] ). Therefore, defendants' failure to produce evidence as to when the premises was last inspected before the accident is irrelevant to the issue of Apple's liability. Accordingly, Apple is entitled to summary judgment with respect to plaintiff's complaint and any cross-claims asserted against it.
A tenant in possession of real property has a duty to maintain the property in a reasonably safe condition (see generally Tamhane v. Citibank, N.A., 61 AD3d 571, 574 [1st Dept. 2009] ). To impose liability upon a landowner or occupier in a premises liability-related action, there must be evidence that a dangerous or defective condition existed and that the defendant either created or had actual or constructive notice of the condition (see Piacquadio v. Recine Realty Corp., 84 NY2d 967  ). To constitute constructive notice, a defect must be visible and apparent, and must exist for a sufficient length of time before the accident to permit defendant's employees to discover and remedy it (see Gordon v. American Museum of Natural History, 67 NY2d 836, 837  ). The law requires notice of the specific condition alleged at the specific location alleged (id.). Importantly, it is not the plaintiff's burden in opposing a motion for summary judgment to establish that defendants had actual or constructive notice of the hazardous condition. Rather, it is defendant's burden to establish lack of notice as a matter of law (see Giuffrida v. Metro N., Commuter R.R. Co., 279 AD2d 403, 404 [1st Dept. 2001] ). Such a moving defendant must demonstrate the lack of evidence regarding how the alleged condition came into existence, how visible and apparent it was, and for how long a period of time prior to the accident it existed (Id.).
In this case, Chase established that it did not create the allegedly hazardous condition by providing unrefuted testimony that Chase did not have any shovels on the site and never engaged in any snow removal activities. Chase, however, failed to establish that it lacked actual notice or constructive notice of the allegedly hazardous condition, because they failed to produce evidence from someone with personal knowledge as to when the parking lot was last inspected before the accident (see Spector v. Cushman & Wakefield, Inc., 87 AD3d 422 [1st Dept.2011]; see also Singh v. Citibank, NA, 136 AD3d 521 [1st Dept. 2016] ). Mr. Rodriguez testified that he would inspect the premises on a bi-monthly basis and this inspection included looking for snow and ice conditions (Rodriguez EBT at 29). If he saw such a condition, he would issue a work order to McGuire's personally (id.). Mr. Rodriguez, however, could not recall the last time prior to the date of the accident that he performed an inspection (id. at 16). He testified that no one at the property other than McGuire's was responsible for site inspection or the removal of snow or ice (id. at 13), and that it was McGuire's responsibility to come to the property and perform snow and ice removal without the need to be contacted first by Chase employees (id. at 10). However, he further testified that if branch employees were apprised of a hazardous condition on the premises, the employees would submit a work order directly to McGuire's (id. at 11). Chase failed to submit evidence from someone with personal knowledge from the branch itself so as to establish the condition of the parking lot on the date of this accident. Absent such evidence, the Court cannot make an assessment of whether the condition existed for a sufficient length of time to trigger Chase's duty to remedy it, or whether Chase acted reasonably in maintaining its property (see De La Cruz v. Lettera Sign & Elec. Co., 77 AD3d 566, 566 [1st Dept. 2010]; see also Lebron v. Napa Realty Corp., 65 AD3d 436[1st Dept. 2009] ).
Furthermore, absent testimony from an individual with personal knowledge from the branch itself, the court cannot make an assessment of whether Chase was apprised of the ice condition on the parking lot and thus had actual notice before this accident occurred (see Spector v. Cushman & Wakefield, Inc., 87 AD3d at 423; see also Simpson v. City of New York, 126 AD3d 640, 640–41 [1st Dept. 2015] ). Rodriguez testified that he did not receive any complaints about the property prior to the accident, but he also acknowledged that branch employees would be responsible for submitting work orders directly to McGuire's—thus indicating that Rodriguez would not necessarily have knowledge as to whether or not there were complaints regarding the premises prior to the accident (id at 11–12). Chase's contention that Rodriguez did not issue touch-up work orders to McGuire's for snow and ice conditions is similarly unavailing because it is evident that the branch manager—not Rodriguez—would be the ones who would usually deal with such issues. Testimony that property owner Apple received no prior complaints is not probative to the issue of whether Chase received complaints. Moreover, McGuire's lack of reports or complaints about the property prior to the accident does not conclusively establish that none were received by Chase employees.
On the issue of constructive notice, Plaintiff's deposition testimony does not establish as a matter of law that the black ice condition was not “visible and apparent” at the time of this accident. Plaintiff did testify that the parking spot area appeared to be clear (Pl. EBT at 27), and that she did not notice the ice until after she fell (id at 24), and that it was black and “looked like the ground” (id at 97). However, Plaintiff also testified that she did not look down at the ground when she was stepping out of her car (id at 22). She also testified that the ice patch stretched from where she was out to four or five feet away, and expanded to where her feet were to about six to ten feet underneath her parked vehicle (id at 24–25). The large size of the ice patch raises issues of fact as to whether it was visible and apparent, and existed for a sufficient length of time to allow for discovery and remediation (see, e.g., Gonzalez v. American Oil Co., 42 AD3d 253, 256 [1st Dept. 2007]; see generally Sprague v. Profoods, 77 AD3d 585 [1st Dept. 2010] ). Thus, there are issues of fact as to constructive notice, even when disregarding the Plaintiff's affidavit submitted in opposition to the motion, which defendants allege materially contradicts her deposition testimony.
The climatological records are not probative of the issue of the parking lot's condition at the time of the accident, because those records are not from the Bronx, where the accident occurred (see Lebron v. Napa Realty Corp., 65 AD3d at 437, citing inter alia Ralat v. New York City Housing Authority, 265 AD2d 185, 186 [1st Dept. 1999] ).
3. Chase's Motion with respect to its Cross–Claims against McGuire's
Chase is not entitled to summary judgment on its cross-claim against McGuire's for contractual indemnification. According to the Chase–McGuire's agreement, McGuire's agreed to indemnify Chase for “․ (iii) the negligent, willful, or reckless acts or omissions of or by Supplier or any Supplier personnel; or (iv), death, personal injury, bodily injury, or property damage caused by Deliverables, Supplier or any Supplier Personnel․” (Agreement at Article 11—Indemnity; Limitation of Liability). Since—as will be discussed infra—there are issues of fact as to whether McGuire's negligence, if any, caused this accident, the motion must be denied (see Callan v. Structure Tone, Inc., 52 AD3d 334, 335 [1st Dept. 2008] ).
Because Chase failed to establish that it lacked actual or constructive notice of the allegedly hazardous ice condition, it is not entitled to summary judgment on its cross-claim against McGuire's for common law indemnification and contribution (see Kielty v. AJS Constr. of L.I., Inc., 83 AD3d 1004, 1006 [2nd Dept. 2011]; Aragundi v. Tishman Realty & Constr. Co., Inc., 68 AD3d 1027 [2nd Dept. 2009][“an award of summary judgment on a claim for common-law indemnification is appropriate only where there are no triable issues of fact concerning the degree of fault attributable to the parties”]; see also DeJesus v. 888 Seventh Ave. LLC., 114 AD3d 587, 588 [1st Dept. 2014] ). While Chase contends that it exercised no control over snow and ice removal on the premises, it is evident that Chase employees were responsible for reporting hazardous conditions in the parking lot, and they do not claim that co-defendant McGuire entirely displaced Chase's duty to maintain the premises in a reasonably safe condition. In fact, Chase concedes in its opposition to McGuire's summary judgment motion that McGuire did not entirely displace Chase's responsibility to maintain the premises safely (Chase Aff. In Opp., at Page 5, Par. 10).
Chase's moving papers do not seek summary judgment on their breach of contract/failure to procure insurance claims against McGuire's.
B. McGuire's Motion for Summary Judgment
McGuire's initially argues that its motion must be granted because the “black ice” condition was not visible and apparent and therefore was not actionable. However, for the reasons stated supra, Plaintiff's own testimony does not establish that the condition could not have been discovered before her accident occurred, and the lack of testimony concerning pre-accident inspection of the lot undermines the defendants' entitlement to summary judgment on this issue.
McGuire's next argues that it is entitled to summary judgment because as a snow removal contractor it owed no duty to Plaintiff, and none of the exceptions to this general rule apply. It is well-settled that liability for a dangerous condition on real property is predicated upon occupancy, ownership, control, or special use of the premises (see Balsam v. Delma Eng'g Corp., 139 AD2d 292 [1st Dept. 1988], lv. dism. in part, den. in part,  ). In this case, McGuire's did not own, lease, or make special use of the subject premises, but instead it performed snow removal services pursuant to a written contract. “A contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” (Espinal v. Melville Snow Contrs., 98 NY2d 136, 138  ). The Court of Appeals has nevertheless recognized three exceptions to this general rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties, and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely (id ).
Where, as here, a plaintiff alleges facts in her complaint which would establish the applicability of any of these exceptions, it is the defendant's burden on a motion for summary judgment to eliminate all triable issues of fact as to whether the Espinal exceptions apply to the matter (compare Brathwaite v. New York City Housing Authority, 92 AD3d 821, 823–824 [2ND Dept. 2012]; see generally Mastroddi v. WDG Dutchess Associates Ltd. Partnership, 52 AD3d 341, 342 [1st Dept. 2008] ). In this case, it is not disputed that exceptions (2) and (3), listed supra, do not apply to these facts. However, McGuire's failed to eliminate all triable issues of fact as to exception (1). This exception applies where the contracting party “who undertakes to perform services pursuant to a contract negligently creates or exacerbates a dangerous condition by launching its own ‘force or instrument of harm’ ” (see Cornell v. 360 West 51st Street Realty LLC., 51 AD3d 469 [1st Dept. 2008][internal quotations omitted] ).
McGuire's failed to produce evidence from an individual with personal knowledge detailing how the snow removal work was performed at the accident location prior to the date of this accident, or evidence as to the condition of the parking lot after that work was allegedly completed. The log book produced by McGuire's indicates that on February 18th, two days before this accident, McGuire's performed “pre-salting Chase” at 4AM “as requested.” The next entry states “snow again—snow stopped 11AM all [routes] out from 4AM—4PM, salting, cleaning, etc․ about 1/212 inches in total.” Tina McGuire confirmed that McGuire's did this work and she states that at no time afterwards did Chase request that McGuire's return to the loss location to perform additional services—until February 26, 2014. However, she does not indicate that she has personal knowledge as to what was done at the property or how it was done. McGuire's cites to the fact that they weren't called back to the premises to demonstrate that it was done to satisfaction of Chase, however nothing in the contract required Chase to notify McGuire's to return to the premises. Therefore, the fact that Chase did not contact McGuire does not necessarily dispose of the issue of whether McGuire's did not launch an instrument of harm when it allegedly plowed the parking lot. Plaintiff testified that she did not see any salt where she fell and she described the hazard as a large patch of ice. The motion record contains no testimony as to what McGuire's did or how it was done. The log book entries are sparse and merely state “salting, cleaning, etc.” for McGuire's entire route, two days before the accident. McGuire's provides no indication as to whether they ever inspected their work after it was completed, or how the work was actually done at the site. Mr. Kempsey testified only as to McGuire's custom and usual snow removal practice. He did not allege that such custom or practice was adhered to on this occasion at the Chase parking lot. He had no personal knowledge as to what was actually done and he did not testify that he inspected the work afterwards. McGuire's thus failed to show prima facie that it did not create or exacerbate a hazardous ice condition on the parking lot (see Jenkins v. Related Companies, L.P., 114 AD3d 435, 436 [1st Dept. 2014] ). “[G]iven [McGuire's] silence with respect to actual snow removal operations and the condition of the parking lot on the relevant date, [McGuire's] failed to meet its burden of whether it created or exacerbated a hazard” (Mastroddi v. WDG Dutchess Associates Ltd. Partnership, 52 AD3d at 342, citing Prenderville v. International Serv. Sys., Inc., 10 AD3d 334 [1st Dept. 2004] ).
McGuire's motion to dismiss the third party complaint is also denied. McGuire's failed to demonstrate that it did not owe a duty to Plaintiff outside of its contractual obligations—as noted supra—and therefore it is not entitled to dismissal of the cross-claim for contribution. Since McGuire's failed to adequately demonstrate that they performed their snow removal activities in a non-negligent manner, they are not entitled to dismissal of Chase's common law or contractual indemnification claims. As for the breach of contract claims, the agreement at issue required McGuire's to procure general commercial liability insurance coverage in the amount of $2,000,000 (Agreement—“Required Insurance,” Par. [ii] ). However, McGuire's only obtained $1,000,000 worth of coverage, according the McGuire's moving papers. Thus, McGuire's is not entitled to dismissal of that claim.
Accordingly, it is hereby
ORDERED, that the branch of Apple/Chase's motion for summary judgment seeking dismissal of Plaintiff's complaint and any cross-claims asserted against Apple only is granted, and such claims asserted against Apple are dismissed with prejudice, and it is further,
ORDERED, that the remaining branches of Apple/Chase's motion for summary judgment are denied, and it is further,
ORDERED, that McGuire's motion for summary judgment is denied.
Mary Ann Brigantti, J.
Response sent, thank you
Docket No: 23245/2014E
Decided: June 05, 2018
Court: Supreme Court, Bronx County, New York.
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