Romero v Morrisania Towers Hous. Co. Ltd. Partnership

Romero v Morrisania Towers Hous. Co. Ltd. Partnership 2012 NY Slip Op 00249 Decided on January 17, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 17, 2012
Tom, J.P., Catterson, DeGrasse, Richter, Manzanet-Daniels, JJ. 6565-
22741/06 6566

[*1]Jason Romero, Plaintiff-Respondent,

v

Morrisania Towers Housing Company Limited Partnership, et al., Defendants-Appellants.




Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York
(Judy C. Selmeci of counsel), for Morrisania Towers Housing
Company Limited Partnership, The National Housing
Partnership etc., Apartment Investment and Management Company
and NHP Management Company, appellants.
Gallo Vitucci & Klar, New York (Kimberly A. Ricciardi of
counsel), for First Quality Maintenance, L.P., and Limpiar, Inc.,
appellants.
Lester Schwab Katz & Dwyer, LLP, New York (Howard R.
Cohen of counsel), for McRoberts Protective Agency, appellant.
Berson & Budashewitz, LLP, New York (Jeffrey A. Berson of
counsel), for respondent.

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered March 23, 2011, which, among other things, denied defendants' motions for summary judgment dismissing the complaint and all related cross claims, unanimously modified, on the law, without costs, to grant defendant McRoberts's motion for summary judgment dismissing the complaint and cross claims against it, grant the motion by defendants First Quality Maintenance and Limpiar, Inc. (collectively FQM) for summary judgment to the extent of dismissing the complaint against it, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.

Plaintiff allegedly slipped and fell on a "brownish liquid" in the stairwell of a building owned and managed by the Morrisania defendants, cleaned by the FQM defendants, and monitored by McRoberts. Defendants failed to make a prima facie showing that they did not have notice of the hazardous condition. Indeed, they did not submit evidence, based on personal knowledge, of their fulfillment of their cleaning and inspection duties at the subject premises on the date in question. Accordingly, the burden did not shift to plaintiff regarding notice (see e.g. De La Cruz v Lettera Sign & Elec. Co., 77 AD3d 566, 566 [2010]).

Nevertheless, McRoberts and the FQM defendants made a prima facie showing that, as service providers pursuant to contracts with Morrisania, they owed no duty of care to plaintiff (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140-141 [2002]). In response, plaintiff failed to raise a triable issue of fact as to whether McRoberts or FQM launched a force or [*2]instrument of harm by failing to exercise reasonable care in the performance of their contractual duties; whether they entirely displaced Morrisania's duty to maintain the premises safely; or whether plaintiff detrimentally relied on the continued performance of their contractual duties. Accordingly, the complaint should have been dismissed as against McRoberts and the FQM defendants.

However, FQM is not entitled to summary judgment dismissing the cross claims against it. In its maintenance contract with the Morrisania defendants, FQM agreed to indemnify the "owner" for any loss arising from its cleaning duties. As noted above, FQM failed to offer competent evidence that it properly performed its maintenance duties on the date in question.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 17, 2012

CLERK