Gleason v City of New York

[*1] Gleason v City of New York 2009 NY Slip Op 50309(U) [22 Misc 3d 1127(A)] Decided on February 23, 2009 Supreme Court, Kings County Miller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 23, 2009
Supreme Court, Kings County

John Gleason, Plaintiff,

against

City of New York, Arrow Steel Window Corp., E.C. Contracting, Inc., et ano., Defendants.



29619/02



The plaintiff is represented by the law firm of Minchew Santner & Brenner, LLP., by Jamie M. Minchew, Esq., of counsel, the defendant the City of New York is represented by Michael A. Cardozo, Esq., Corporation Counsel of the City of New York by Dana Wiczyk, Esq., of counsel, the defendant Arrow Steel Window Corp., is represented by the law firm of Smith Mazure Director Wilkins Young & Yagerman, P.C. by Mark D. Levi, Esq., of counsel, the defendant E.C. Contracting is represented by the law firm of Galvano & Xanthakis, P.C., by Matthew Kelly, Esq., of counsel, the defendant Peerless products is represented by the law office of John P. Humphreys by Frederick D. Schmidt, Jr.,Esq., of counsel.

Robert J. Miller, J.

Upon the foregoing papers, defendants E.C. Contracting, Inc. (ECC) and Peerless Products, Inc. (Peerless),[FN1] move for an order, pursuant to CPLR 3212, granting summary judgment dismissing plaintiff John Gleason's complaint and all cross claims asserted against ECC and Peerless. Defendant Arrow Steel Window Corp. (Arrow), cross-moves for an order, pursuant to CPLR 3212, dismissing the complaint and all cross claims asserted against it. Defendant City of New York (City), also cross-moves for an order, pursuant to CPLR 3212, granting it summary judgment dismissing the complaint, or, in the alternative, dismissing the complaint, pursuant to CPLR 3211,on the grounds that plaintiff is unable to [*2]prove a prima facie case of negligence against it. City also seeks summary judgment under its contractual indemnification cross claim against Arrow in the event that the court declines to dismiss plaintiff's claims against City. Finally, plaintiff cross-moves for an order, pursuant to CPLR 3212, granting him summary judgment as against City on the issue of liability.

Factual and Procedural Background

This personal injury action arises out of an incident that occurred on January 31, 2002, at the 78th precinct of the New York City Police Department (NYPD) located at 65th Street and 6th Avenue in Brooklyn (the subject premises). As plaintiff, a New York City police officer, was attempting to open the bottom portion of a "double hung" window in the third floor men's locker room, the bottom portion of the window allegedly fell completely out of its frame and struck plaintiff, causing him injury. Plaintiff testified at his examination before trial that he grabbed the "stash handle" on the bottom portion of the window with both hands and pulled upward on the handle until the window was approximately halfway open. When the bottom portion of the window reached the halfway point, the window allegedly became detached from the window track, causing the bottom portion of the window to fall out into the locker room and onto plaintiff. According to plaintiff, while the bottom sash came out of its track, the frame surrounding the window stayed intact. In an affidavit submitted in support of his cross motion for summary judgment, plaintiff asserts that there were gaps around the subject window that allegedly allowed the frame of the window to "flex" as he opened it, which caused the bottom portion of the window to fall out of its frame.

It is undisputed that Arrow and City entered into a contract for a window replacement/installation project at the subject premises, including the replacement of the subject window, which lasted approximately two months and was completed in late 2000/early 2001. The subject window was installed pursuant to a verbal agreement between ECC, the subcontractor that installed the window, and Arrow, the general contractor hired by City to replace the window in the third floor locker room. Peerless manufactured and supplied the subject window to ECC. According to the testimony of William Jones (Jones), an engineering manager employed by Peerless, the subject window was a commercial double hung "tilt type" window, which could be tilted inward for cleaning.[FN2]

Plaintiff testified at his examination before trial that, prior to his accident, he had opened and closed the subject window between 10 and 50 times without incident. However, [*3]plaintiff also testified that, from the time he was assigned to the 78th precinct, on September 21, 2000, until the date of his accident, he noticed that there was a "gap" (less than one inch wide) on both the right and left side of the subject window, which extended the entire height of the window. Plaintiff recalled "unofficial" comments between fellow police officers regarding "how bad [the windows] were put in," but he confirmed that no work orders or formal complaints regarding the condition of the windows had been initiated by him, or anyone that he knew. Plaintiff indicated that more than 200 police officers made use of the locker room at the time of his accident and that it was common for officers to open the subject window for ventilation because the temperature inside was often very warm.

After the subject windows were installed, ECC presented an invoice to Arrow, dated September 11, 2000. Gary Galati (Galati), president of Arrow, testified that he made a visual walk-through inspection of the installation performed by ECC, and that he did not observe any problems with ECC's work at the time of his inspection. Galati also indicated that he had never heard of an accident where the bottom portion of a window fell out, and he had never received any complaints regarding the installation of windows performed by ECC at the subject premises.

Subsequent to the installation, City presented Arrow with a "punch list," dated November 27, 2000, containing items which needed to be completed as part of the window installation project at the subject premises. The punch list was created by John Bubuiak (Bubuiak), who worked as a project manager for the City of New York Department of Design and Construction, and Phil DiMaria (DiMaria), an architect employed by the NYPD, who inspected the subject windows in the 78th precinct after ECC's installation.[FN3] In an affidavit submitted by ECC, DiMaria indicates that he did not recall observing any structural defects in the windows in the subject locker room on the date of his inspection, nor at any other time. Bubuiak also testified that he did not recall having any difficulty opening and [*4]closing any of the newly installed windows during his inspection, nor did he experience any problems with the windows falling out of their frames. Bubuiak testified that he was unaware of any complaints regarding the operation of any windows prior to plaintiff's accident. According to Bubuiak, it was common practice for City to inspect windows after their installation to ensure that all of the punch list items were completed. He also testified that such an inspection was performed in the instant case, and that all of the punch list items were completed. Galati testified that he believed that the punch list was sent to ECC and that the punch list items were completed, but he could not recall if ECC made any of the punch list repairs. Edward Crimmins (Crimmins), owner of ECC, testified at his examination before trial that it was possible that he had been notified by Arrow that some of the windows installed at the subject premises had some "cracking" issues around the windows, but he could not recall any details, nor could he recall if ECC ever made any subsequent repairs to the subject windows. Crimmins testified that he did not receive the punch list from Arrow and that he did not know if the punch list items were completed. Moreover, according to Crimmins, if he had noticed a gap around the windows after the installation, he would have considered this a caulking problem rather than a structural defect. Crimmins also testified that ECC had never experienced any problems with the windows. Jones further testified that he never received any complaints about the bottom portion of the window falling out. According to Jones, if there was a visible gap around the window, the gap would normally be in between the interior trim and the subspace of the window in an area referred to as the "caulk joint." If the installer did not caulk around the window, Jones testified that this would not affect the operation of the window. However, Jones also testified that he had no knowledge of the installation process of the subject windows and, therefore, he had no comment on the particular installation at issue.

City paid Arrow in full for the completion of the window replacement and installation project at the subject premises. Police Officer Michael Guzzo (Guzzo), responsible at the time of the accident for investigating building and OSHA violations made by NYPD employees, testified that there were no official work orders pertaining to windows installed at the 78th precinct for a one year period prior to plaintiff's accident.

Plaintiff commenced the instant action by filing a summons and complaint on or about July 30, 2002. Plaintiff's amended verified complaint alleges, among other things, causes of action against ECC, Arrow and City (collectively, defendants) under the doctrines of res ipsa loquitur and common-law negligence as well as General Municipal Law § 205 (e).[FN4]

[*5]The Parties' Contentions

ECC's Motion for Summary Judgment

In support of its motion for summary judgment dismissing plaintiff's complaint, ECC argues that plaintiff has not established that his accident was caused by any negligence on its part, nor has plaintiff produced any evidence to show that the window installation was performed negligently. In this regard, ECC maintains that plaintiff's allegation that the window was installed defectively is mere speculation and insufficient to raise a question of fact to defeat summary judgment. ECC also notes that approximately one year elapsed from the time that the subject window was installed until plaintiff's accident, and that during this time period, there were no complaints regarding the operation of the window. ECC notes that plaintiff opened and closed the subject window many times and that he made no prior complaints regarding any condition or defect which could have caused his accident. ECC also points to numerous inspections performed by City and Arrow subsequent to the installation, none of which revealed any structural problems or defects which could have caused the subject accident.

Arrow's Cross Motion for Summary Judgment

Arrow also cross-moves for an order granting it summary judgment dismissing plaintiff's complaint. In support of its cross motion, Arrow adopts, in essence, the same legal arguments set forth by ECC in its motion for summary judgment. Arrow alleges that plaintiff has not established that the accident was caused by any negligence on its part and that plaintiff has produced no evidence that the window installation was performed negligently. Arrow further argues that, even if the installation was performed negligently, it was not performed by Arrow, but rather by ECC as a subcontractor. Since Arrow claims that the window was not defective when installed, that over one year had passed from the time of the installation until the time of the accident, and that there were no complaints regarding the operation of the window, it argues there can be no claim that it is negligent.

City's Cross Motion for Summary Judgment

In support of its cross motion to dismiss plaintiff's complaint, City alleges that it had no actual or constructive notice of the dangerous condition which allegedly caused plaintiff's accident, nor did it create the alleged dangerous condition. In regard to constructive notice, City maintains that it had no knowledge that the window was broken or at risk of falling. City notes that plaintiff himself worked at the precinct for more than one year prior to his accident and had opened the subject window many times without incident during this time. City also points out that no work orders were located for the subject window for one year prior to the date of the accident, as indicated by Guzzo in his examination before trial. City [*6]cites Galati's testimony that he did not observe any problems or make any complaints regarding the work Arrow hired ECC to perform, and that Galati testified that all of the items on the punch list were completed. City further reiterates the testimony of Bubuiak, who indicated that after his inspection of the subject windows, he did not observe any problems that could cause a window to fall out of its frame, and that all of the punch list items were completed. Based on the foregoing, City contends that there are no facts demonstrating that it had actual or constructive notice of any problems with the subject window.

Plaintiff's Cross Motion for Summary Judgment Against City

Finally, plaintiff cross-moves for summary judgment against City on the issue of liability, arguing that City allegedly had prior notice of the gap around the window, as well as the unsafe window operation, as evidenced by the punch list created by City. In support of his motion, plaintiff submits witness statements from two police officers to the effect that the gaps were visible around the subject window at the time of plaintiff's accident.[FN5] Plaintiff further maintains that City had control of the window involved in his accident, as demonstrated by City's subsequent remedial repairs. Plaintiff contends that City is negligent under the doctrine of res ipsa loquitur and that the inference of negligence is "inescapable." Specifically, plaintiff alleges that the accident is of the type that does not normally occur in the absence of negligence and that a window falling onto a person who is attempting to operate the window is a proper case for the res ipsa loquitur doctrine. In this regard, plaintiff asserts that the subject window was within the exclusive control of City, as City owned the subject premises, City entered into a contract with Arrow to replace the subject window, and City allegedly performed subsequent remedial repairs on the subject window. Moreover, plaintiff contends that his mere act of opening the window does not put the window under his control or prove that he contributed in any way to his accident. Plaintiff also argues that Arrow and ECC completed their work approximately one year prior to the accident and were, therefore, not in control of the subject window at the time of plaintiff's accident. Plaintiff further alleges that since the doctrine of res ipsa loquitur allegedly applies to the instant action, he does not have to prove actual or constructive notice. However, plaintiff contends that City nonetheless had actual and constructive notice of the allegedly dangerous condition of the window which caused his accident.

Plaintiff's Opposition to Defendants' Motions and Cross Motions

In opposition to defendants' motions to dismiss plaintiff's complaint, plaintiff contends that defendants created the dangerous condition, had notice of the condition, and failed to properly repair the condition that caused his accident. Plaintiff avers that there were gaps around the subject window from at least September 2000, when plaintiff began working at the 78th precinct, until the day of the accident. In this regard, plaintiff maintains that [*7]defendants created the defective condition of the gaps around the subject window by defectively installing and failing to repair the window, which he claims allowed the window frame to flex, causing the bottom portion of the window to fall out of its frame when he attempted to open it. In support of his argument that defendants had prior notice of the gaps in the window frame, plaintiff submits the punch list created by City, and sent to Arrow, which states that there were gaps around some windows after the installation. Plaintiff claims that it is undisputed that City prepared the punch list complaining of gaps around the windows, and that Arrow received the punch list, which demonstrates that both City and Arrow had actual notice of the defective condition. Plaintiff further argues that defendants failed to remedy the defective condition of the gaps for at least one year prior to the accident, constituting constructive notice. Contrary to the defendants' claims that the punch list items were satisfied, plaintiff cites his own observation of gaps around the subject window in the year before his accident as evidence that the punch list items were never satisfied. Plaintiff also notes that defendants fail to affirmatively establish through documentary evidence that ECC or Arrow corrected the gaps around the windows. In this regard, plaintiff reiterates the testimony of Bubuiak, wherein Bubuiak stated that he did not know if ECC or Arrow came back to repair the items on the punch list. Plaintiff also cites the testimony of Galati, who indicated that he would have sent the punch list to ECC after Arrow received it, suggesting that both ECC and Arrow had notice of the defective condition. Plaintiff also relies on the testimony of Crimmins, who stated that ECC may have received prior complaints from Arrow regarding cracking around the windows in the men's locker room, but that he did not know if ECC went back after the job was finished to make any repairs.

In addition to the above arguments, plaintiff opposes City's motion for summary judgment by arguing that City is negligent under the doctrine of res ipsa loquitur. Plaintiff first argues that his accident is analogous to other accidents that do not occur in the absence of negligence, namely those which involve a door falling off its hinges and onto the plaintiff. Plaintiff also asserts that "there is nothing in this case that puts control of these windows on anyone other than [City]." According to plaintiff, City had control of the window involved in the accident, as evidenced by the fact that it entered into a contract to repair the windows and that it performed subsequent remedial repairs following the accident. Plaintiff specifically notes that City generated a work order on February 2, 2002 to repair the subject window, and that it completed the repairs. Finally, plaintiff avers that the mere act of opening the window does not make the accident the plaintiff's fault or take control out of the hands of City. Since plaintiff claims that the res ipsa loquitur doctrine applies to City in this case, and because plaintiff alleges that there is an inference of negligence, plaintiff argues that the case should proceed to the jury and City's cross motion for summary judgment dismissing plaintiff's complaint should be denied.

ECC's Reply to Plaintiff's Opposition

In reply to plaintiff's opposition to its motion for summary judgment, ECC argues that plaintiff's opposition is speculative and not supported by admissible evidence. Contrary to [*8]plaintiff's claims, ECC maintains that there is no evidence that it ever received the punch list or had notice of the alleged defective condition which caused plaintiff's accident. ECC also avers that plaintiff's argument that defendants failed to demonstrate the completion of the punch list items is misleading, since Bubuiak testified that the items were, in fact, completed. Furthermore, ECC argues that plaintiff specifically conceded Arrow and ECC were not in control over the subject window at the time of the accident, proving that ECC is not responsible for any defective condition of the window.[FN6] In this regard, ECC avers that it is possible that a maintenance practice of City and/or acts of City agents or police officers caused and/or contributed to the alleged defect in the subject window. Specifically, ECC contends that ECC and Arrow were unable to monitor City's practice in securing the tamper tilt screws following the cleaning or maintenance of the windows. ECC avers that if the windows were cleaned and the screws were not properly replaced, the window would fall partially out of the frame once someone tried to open it, which ECC claims is consistent with plaintiff's version of events here. ECC also regards the affidavit submitted by plaintiff in support of his motion for summary judgment as an attempt to create a feigned issue of fact. To that effect, ECC argues that since plaintiff originally testified that the window frame stayed intact and that only the bottom portion came out of its track, and then subsequently stated in his affidavit that the window frame was caused to "flex and move" allowing the bottom of the window to fall out, the affidavit is self-serving and should not be considered by the court. Even assuming the court considers all of plaintiff's evidence, ECC maintains that summary judgment is not warranted because plaintiff has not shown that gaps in a window could have caused the window to fall out of its frame and plaintiff has not provided an expert affidavit to support this theory. Therefore, ECC asserts that plaintiff cannot establish that window gaps and/or lack of caulking caused the subject accident.

Arrow's Reply to Plaintiff's Opposition

In reply to plaintiff's opposition to its cross motion for summary judgment, Arrow adopts, in essence, the arguments set forth by ECC. Arrow also argues that plaintiff mis-cites the testimony of several witnesses, including Galati, who specifically testified that all of the punch list items were satisfied.

[*9]City's Reply to Plaintiff's Opposition and City's Opposition to Plaintiff's Cross Motion

In reply to plaintiff's opposition to City's cross motion, and in opposition to plaintiff's cross motion for summary judgment on the issue of liability against City, City argues that the doctrine of res ipsa loquitur does not apply in the instant case since this doctrine should only be invoked where the unexplained circumstances of the case justify an inference of negligence. According to City, plaintiff cannot rely on res ipsa loquitur in lieu of an expert affidavit or expert opinion indicating what caused the subject window to fall. City maintains that in cases where the cause of the accident can be determined, the doctrine of res ipsa loquitur does not apply. Moreover, City contends that the element of exclusive control is lacking in the instant case since outside contractors installed the subject window and plaintiff himself opened and closed the window on numerous occasions, and hundreds of other police officers and employees were allowed similar access to the window. City further alleges that, since plaintiff was opening the window at the time of the accident, his own conduct in opening the window should preclude the application of res ipsa loquitur. In this regard, City maintains that since plaintiff has not demonstrated what caused the window to fall, he cannot conclusively establish that his own conduct did not contribute to the accident. Finally, even if the court were to find issues of fact with regard to the application of res ipsa loquitur, City contends that plaintiff is not necessarily entitled to summary judgment based on this doctrine, as the granting of summary judgment in such cases is rare.

City also alleges that plaintiff fails to raise a triable issue of fact with regard to either actual or constructive notice. According to City, "plaintiff has apparently conceded that the City was not on notice of the alleged condition and simply argues in his opposition papers that the City is vicariously liable for its contractors' negligence installation of the window." City avers that plaintiff has failed to demonstrate that the subject window was negligently installed. City cites the testimony of Bubuiak and Galati to the effect that there were no prior complaints regarding the operation of the newly installed windows or any possible defects in the subject window that might have caused plaintiff's accident. City also emphasizes the fact that plaintiff himself used the subject window without incident or complaint for over one year prior to his accident. In addition, City notes that no work orders were executed for the subject window in the year before plaintiff's accident, as indicated by the testimony of Guzzo. Moreover, City contends that plaintiff's affidavit submitted after his examination before trial is self-serving and an attempt to create issues of fact regarding the gaps around the windows in order to defeat summary judgment. City asserts that, even assuming that gaps around the windows did exist, plaintiff has failed to demonstrate a causal connection between the gap in the window and the window falling out of its frame. In this regard, City argues that plaintiff's speculation is insufficient to defeat its cross motion for summary judgment.

Plaintiff's Reply to City's Opposition

In reply to City's opposition to plaintiff's cross motion for summary judgment, plaintiff reiterates that City is negligent under the doctrine of res ipsa loquitur and that the inference of negligence in the instant case is "inescapable." Plaintiff emphasizes that City was in [*10]control of the window at the time of the accident, and that there is no evidence that plaintiff contributed in any way to his accident. Plaintiff also alleges that the cause of the accident is clear; that the windows were improperly installed and that gaps were left around the window frame which allowed the frame to flex upon opening. Plaintiff avers that City was aware of the defective condition of the subject window and failed to repair it for over one year prior to his accident. According to plaintiff, City created the condition through its agents who installed the windows and subcontracted for their installation, and City had actual and constructive notice of the defective condition of the gaps around the windows which allegedly caused plaintiff's accident. Contrary to City's contentions, plaintiff argues that he is "not required to hire an expert to prove what is already proven by the City's own documents establishing the defect." Plaintiff also denies that the affidavit he submitted in support of his motion for summary judgment is self-serving, asserting that it "merely amplifies his testimony."[FN7]

Discussion

Summary Judgment Standard

It is well established that the proponent of a summary judgment motion must make a prima facie showing of entitlement to summary judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (see Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). Once a prima facie showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish material issues of fact which require a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The evidence presented on a motion for summary judgment must be scrutinized in the light most favorable to the party opposing the motion (see Goldstein v Monroe County, 77 AD2d 232, 236 [1980]). Moreover, "[i]t is well established that negligence cases do not generally lend themselves to resolution by summary judgment, since that remedy is appropriate only where the negligence or lack of negligence of defendant is established as a matter of law" (Chahales v Garber, 195 AD2d 585, 586 [1993]).

Plaintiff's Cross Motion for Summary Judgment Res Ipsa Loquitur

The court turns, initially, to plaintiff's cross motion for summary judgment against City on the issue of liability and the application of the res ipsa loquitur doctrine. "The doctrine of res ipsa loquitur permits an inference of negligence to be drawn solely from the happening of an accident upon the theory that "certain occurrences contain within themselves a sufficient basis for an inference of negligence"'" (Giordano v Toys "R" Us, 276 AD2d 669, 669 [2000], quoting Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226 [*11][1986], quoting Foltis v City of New York, 287 NY 108, 116 [1941]). To prevail on the theory of res ipsa loquitur, a plaintiff must show that (1) the event would not usually occur absent negligence, (2) the instrumentality of the injury was within the defendant's exclusive control, and (3) the plaintiff did not contribute to the cause of the accident (see Dermatossian, id.; Kambat v St. Francis Hosp., 89 NY2d 489, 494 [1997]). In order to rely upon the doctrine, a plaintiff need not conclusively eliminate all other possible explanations for the incident at issue, since it is enough to present evidence from which a reasonable jury could conclude that it is more likely than not that defendant's negligence caused the injury (see Pavon v Rudin, 254 AD2d 143, 145 [1998], citing Kambat, 89 NY2d at 494).

Here, although "[t]he requirement of exclusive possession and control is not an absolutely rigid concept," (Cameron v H. C. Bohack Co., 27 AD2d 362, 364 [1967]; see also Rivera v National Passenger Railroad Service, 442 F Supp2d 164, 169 [US Dist Ct SDNY 2006], quoting Potthast v Metro-North Railroad Co., 400 F3d 143, 151 n. 9 [2d Cir. 2005] ["(t)he fact that third parties had access to the instrumentality that caused an injury does not preclude use of the res ipsa loquitur doctrine "so long as adequate evidence [is] presented that allow[s] a jury to exclude the actions of such third parties as significant causes of the injury"]), plaintiff has failed to establish, with adequate admissible proof, the requisite element of exclusive control. In order to overcome the rule that res ipsa loquitur will not apply where an instrumentality is generally under the control of persons other than the defendant, a plaintiff must demonstrate that the defendant had control of sufficient exclusivity to fairly rule out the chance that the alleged defect was caused by some agency other than the defendant's negligence (see Dermatossian v New York City Tr. Auth., 67 NY2d at 228). Indeed, in the absence of any admissible proof, where the plaintiff's injury occurred in a facility which was open to, and used extensively by, over 200 police officers and numerous other employees, plaintiff fails to adequately refute the possibility that the subject window had been damaged by one of the many individuals that had access to the window each day. The traffic inside the locker room in the instant case is analogous to those situations where the allegedly defective instrumentality is open to the public, thereby obviating the element of "exclusive" control (see Ebanks v New York City Transit Authority, 70 NY2d 621, 623 [1987]; see also Dermatossian, 67 NY2d at 228). Plaintiff himself admitted to opening the subject window up to 50 times prior to the date of the accident, and he also testified that it was common for other police officers to open the subject window for ventilation because the temperature inside the locker room was often very warm. Plaintiff's testimony makes clear the fact that, subsequent to the installation of the subject window and prior to plaintiff's accident, numerous individuals had access to and operated the subject window. Under these circumstances, plaintiff cannot establish that City had the exclusive control necessary for the application of res ipsa loquitur. Similarly, plaintiff also cannot establish that the subject window was in the exclusive control of City at the time of the installation, since employees of both ECC and Arrow had access to the window at that time. Accordingly, plaintiff is not entitled to rely on res ipsa loquitur as a theory of liability against [*12]City.

In any event, even if plaintiff had established that the theory of res ipsa loquitur was applicable, his reliance upon the doctrine in support of his cross motion for summary judgment is misplaced, since it has been held that:

"the doctrine is a rule of evidence which merely provides a permissible inference of negligence rather than a presumption (see Dermatossian., 67 NY2d at 226; Vaynberg v Provident Operating Corp., 269 AD2d 442 [2000]; Feuer v HASC Summer Program, 247 AD2d 429 [1998]). Therefore, application of the doctrine as a basis for awarding summary judgment is inappropriate (see Vaynberg v Provident Operating Corp., supra; Davis v Federated Dept. Stores, 227 AD2d 514 [1996])."

(Capolongo v Giant Carpet, 292 AD2d 331, 331 [2002]; see also Martinez v City of New York, 292 AD2d 349 [2002]; Mejia, 291 AD2d 225). In Morejon v Rais Constr. Co., (7 NY3d 203 [2006]), the Court of Appeals declined to hold that summary judgment could never be appropriate in a res ipsa loquitur case, instead finding that it is justified "only in the rarest of res ipsa loquitur cases . . . when the plaintiff's circumstantial proof is so convincing and the defendant's response so weak that the inference of defendant's negligence is inescapable." In considering plaintiff's initial burden to make a prima facie showing of his entitlement to judgment as a matter of law, this court concludes that the instant case is not one of those "rare" cases where the plaintiff, relying on res ipsa loquitur, has shown not only the absence of any material issue of fact but also that the inference of negligence is "inescapable." Furthermore, even if plaintiff had demonstrated a prima facie case for the application of res ipsa loquitur, there are outstanding issues of fact regarding City's negligence that preclude the granting of plaintiff's cross motion for summary judgment as a matter of law, as articulated below.

Accordingly, that branch of plaintiff's cross motion seeking summary judgment against City on the issue of liability in reliance upon the doctrine of res ipsa loquitur is denied. Common-Law Negligence

In his cross motion for summary judgment, plaintiff also asserts the theory of common-law negligence against City as a result of City's alleged creation and/or prior notice of the defective installation of the subject window. It is well settled that:

"The owner or possessor of property has a duty to maintain the property in a reasonably safe condition and may be held liable for injuries arising from a dangerous condition on the property if such owner or possessor either created the condition, or had actual or constructive notice of it and a reasonable time within which to remedy it (see Freidah v Hamlet Golf and Country Club, 272 AD2d 572 [2000]). To establish constructive notice, the plaintiff must show that the defect was visible and apparent, and existed for a sufficient length of time prior to the accident for the owner to discover and remedy it (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Rojas v Supermarkets [*13]Gen. Corp., 238 AD2d 393 [1997])."

(Patrick v Bally's Total Fitness, 292 AD2d 433, 434 [2002], lv denied 98 NY2d 605 [2002]; accord Mejia, 291 AD2d 225).

In considering plaintiff's initial burden of demonstrating his entitlement to summary judgment as a matter of law, the court finds that triable issues of fact exist with regard to whether City had actual or constructive notice of the alleged defective condition which caused plaintiff's accident, as well as issues of fact as to whether the installation was negligently performed that preclude the granting of plaintiff's cross motion. Plaintiff has proffered evidence in the form of his testimony and affidavit that the gaps around the window frame allowed the frame to flex when he opened it, causing the window to fall out of its frame. Contrary to plaintiff's allegations regarding the cause of the accident, defendant has offered testimony from Bubuiak, Crimmins and Jones to the effect that the gaps around the window, if present, were evidence of a caulking problem, not a structural defect which could cause a window to flex and fall out of its frame. Thus, a question of fact exists as to whether the gaps in the frame were a structural defect or a minor caulking problem, and also whether the gaps were the proximate cause of plaintiff's accident. Further, Bubiak's statement in the punch list that several windows had "unsafe window operation," and his later testimony that this statement regarding the window operation was false, present additional credibility issues for a jury to resolve regarding the alleged defects listed in the punch list. Indeed, "[c]rediblity determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . on a motion for summary judgment" (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 314-315 [2004], quoting Anderson v Liberty Lobby, Inc., 477 US 242, 255 [1986]).

Moreover, additional questions of fact exist regarding City's notice of the alleged defective condition of the gaps around the window. Plaintiff claims that City had actual notice of the defective condition as a result of the punch list created for City by Bubuiak, which listed gaps that needed to be repaired. Plaintiff also contends that City had constructive notice of the alleged defective condition since the gaps around the subject window existed from the time the window was installed until his accident. While plaintiff contends that the punch list identified a defect in the window installation and that the punch list repairs were not completed, City argues, on the other hand, that the punch list items were completed and that there were no structural defects present in post-installation inspections nor any complaints made regarding the operation of the windows. Bubuiak and Galati testified that the punch list items were repaired. On the other hand, plaintiff avers that the punch list items were not repaired, since the gap in the subject window existed from the time of the installation until the time of the accident. Plaintiff also asserts that there is no affirmative evidence to establish who made the repairs alleged by City. Thus, questions of fact exist as to who was responsible for completing the items on the punch list and whether these items were, in fact, ever completed. Additionally, there is an issue of fact as to [*14]whether City had constructive notice of the allegedly defective condition of the window due to plaintiff's testimony that the gaps around the windows existed for over one year prior to the accident and that City failed to make necessary repairs.

Accordingly, that branch of plaintiff's cross motion for summary judgment against City on the issue of common-law negligence is denied, and City's cross motion to dismiss plaintiff's complaint is also denied.[FN8]

ECC and Arrow's Motions for Summary Judgment

Res Ipsa Loquitur

Initially, since plaintiff argues that neither ECC nor Arrow had exclusive control of the subject window at the time of the accident, the doctrine of res ipsa loquitur is inapplicable to these defendants. As such, plaintiff's complaint which relies on res ipsa loquitur as a theory of liability against ECC and Arrow is considered withdrawn.

Common-Law Negligence

However, plaintiff also alleges that ECC and Arrow are liable under the theory of common-law negligence. Specifically, plaintiff alleges that ECC and Arrow created the defective condition of the gaps around the windows and that these defendants had prior notice of the gaps as evidenced by their receipt of the punch list created by City. In support of their respective motions for summary judgment seeking dismissal of plaintiff's complaint, ECC and Arrow argue that the subject window was not installed defectively and that neither ECC nor Arrow had notice of the alleged defective condition which caused plaintiff's accident. As an initial matter, the court notes that ECC and Arrow's argument that, because City was allegedly in control of the window at the time of the accident, and because more than one year had passed since the installation of the window, neither ECC nor Arrow was responsible for the accident, is unavailing since plaintiff alleges that the defect arose during the installation process. The court also notes that, even though ECC and Arrow contend that they were not responsible for the condition of the window after the installation, and that it was possible that the anti-tamper tilt screws where removed prior to plaintiff's accident, this theory is not supported by the evidence before the court. In fact, Bubuiak testified that if the screws were removed, the window might swing partially open, not fall completely out of its frame, as the subject window allegedly did.

The court also finds, as articulated in the above discussion of plaintiff's cross motion, that there are conflicting statements and material issues of fact regarding the cause of plaintiff's accident and the notice given by the punch list that preclude the granting of summary judgment in favor of ECC and Arrow. As there are issues of fact as to whether the subject window was negligently installed by ECC, ECC is not entitled to dismissal of [*15]plaintiff's complaint. Moreover, as there is evidence in the form of Galati's testimony that Arrow received the punch list and, therefore, that it had notice of the alleged defective condition, Arrow is not entitled to summary judgment as a matter of law. Moreover, even though Bubuiak and Galati testified that the punch list items were completed, there is no affirmative evidence that establishes whether ECC or Arrow actually performed the repairs. ECC argues that there is no evidence that it received the punch list and, therefore, that it did not have notice of the gaps around the windows. However, there is contrary evidence in the form of Crimmins' testimony that Crimmins might have known about cracks around the windows prior to the accident. In addition, Galati testified that Arrow would have sent the punch list to ECC. However, Galati did not know if ECC or Arrow completed the repairs. As such, additional unresolved issues of fact exist as to whether ECC had notice of the alleged defective condition which caused plaintiff's accident and also whether ECC or Arrow completed the repairs.

Accordingly, ECC's motion and Arrow's cross motion for summary judgment seeking dismissal of plaintiff's complaint are both denied.

City's Cross Motion for Contractual Indemnification

City seeks contractual indemnification against Arrow in the event that the court determines that City failed to demonstrate its entitlement to summary judgment as a matter of law. City contends that it is entitled to summary judgment on its contractual indemnification cross-claim against Arrow, pursuant to the contract between the parties. City asserts that the plain language of the contract demonstrates an "unmistakable intent to indemnify." In this regard, City argues that "the contract clearly requires the contractor, the installer of the windows, to indemnify the City, who is merely the owner of the premises and was not actively negligent as it did not control the work site or perform any work at the work site." Further, City contends that the contract makes clear that City's mere inspection and approval of the contractor's work does not relieve the contractor of its duties under the contract.

In opposition to this branch of City's motion for summary judgment, Arrow argues that "City accepted as completed and final the work performed and the City made final payment, thus ending the contractual relationship long before the plaintiff's alleged accident." Arrow further contends that City's argument that it is entitled to contractual indemnity is not permissible under the law as it violates General Obligations Law § 5-322.1.

In reply, City maintains that, if the court denies City's motion for summary judgment because it finds an issue of fact regarding whether the subject window was negligently installed, City is entitled to contractual indemnification against Arrow. City argues that, since the contract evinces a clear intent to indemnify, the contract is enforceable under General Obligations Law § 5-322.1 for partial indemnification. City also contends that indemnification would not be contrary to the purpose of the statute or public policy since City is not the active tortfeasor.

As this court has denied City's motion for summary judgment dismissing plaintiff's complaint, it is necessary to address City's claim for contractual indemnification against Arrow. It is well settled that "[a] party is entitled to full contractual indemnification provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances'" (Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, 777 [1987]). Moreover, where the contractual provision provides for indemnification when the injury arose out of or as a result of the performance of the work, where [*16]there is no evidence that the movant was in any way actively negligent and where the movant had no notice of the defective or unsafe condition, the movant is entitled to summary judgment on his/her claim for contractual indemnification. However, it is also well settled that when there are issues of fact as to whose negligence, if any, caused an accident, it is premature to reach the issue of contractual indemnification in a summary judgment motion (see Pirrotta v Eklec Co, 292 AD2d 362, 364 [2002]; Barnes v DeFoe/Halmar, 271 AD2d 387 [2000]; Chun v Ecco III Enters., 268 AD2d 454 [2000]; Maxwell v Toys "R" Us, 258 AD2d 630 [1999]; Delmar v TerraStruct Corp., 249 AD2d 259 [1998]).

Here, as set forth in the court's discussion of both plaintiff and Arrow's cross motions for summary judgment, there remain outstanding material issues of fact as to whether Arrow or City had notice of the alleged condition that caused plaintiff's accident and whether City breached a duty to repair said condition. Accordingly, as there are issues of fact as to whose negligence, if any, caused the accident (see Pirotta, 292 AD2d 364) that branch of City's cross motion which seeks contractual indemnification against Arrow is denied as premature.

Conclusion

In sum, plaintiff's cross motion for summary judgment against City on the issue of liability is denied, and City's cross motion for summary judgment dismissing the complaint is also denied. ECC's motion for summary judgment dismissing the complaint and seeking contractual indemnification against Arrow is denied. Arrow's cross motion for summary judgment dismissing the complaint is denied. Peerless' motion for summary judgment dismissing the complaint is granted.

The foregoing constitutes the decision, and order of the court.

ENTER,

J.S.C. Footnotes

Footnote 1:The court notes, initially, that plaintiff offers no opposition to Peerless' motion for summary judgment, nor any evidence of a manufacturing defect and, as such, Peerless' motion is granted.

Footnote 2:In this regard, Jones testified that by using a special tip created by the manufacturer, the "anti-tamper tilt" screws on the window could be unscrewed and the window could be tilted inward 180 degrees. Jones also testified that, if the tamper tilt screws were removed and not replaced, the window could be placed in the upright position, but that it would fall partially out of the frame (specifically, it would swing open)when an individual attempted to open the window. If the windows were not installed correctly or fixed to the window opening, Jones testified that, in his opinion, any flex in the window would be minor and not enough to disengage the sashes.

Footnote 3:The punch list states, among other things, that for "some windows" caulking was used even though the gaps around the windows were too large for caulk; that there was inconsistent caulking on the windows throughout the building (meaning some were caulked and others were not); and that several windows had sashes that appeared to be "misaligned" creating improper and "unsafe window operation."

When asked about the "gaps" he listed in the punch list, Bubuiak testified that he was referring to spaces between the window and the frame where there was no "corking." Bubuiak testified that the missing corking would not have anything to do with the "secureness" of the window.

Regarding his notation in the punch list that there were "misaligned" window sashes creating an "unsafe window operation," Bubiak testified that "sashes are the things that go up and down, so they might have been a little off tilt." Bubuiak further testified that this statement regarding the unsafe window operation was "probably not" accurate and that he added this statement to "speed up the contractor" in order to get the job finished.

Footnote 4:The court notes that, in the complaint plaintiff alleges that defendants breached express and implied warranties, including the warranties of merchantability and fitness for a particular purpose. However, as no mention is made of the above claims or any alleged manufacturing defects in plaintiff's motion or opposition papers, and since the motion for summary judgment made by the window's manufacturer, Peerless, was granted, plaintiff's breach of warranty claim is considered withdrawn and will not be addressed by the court.

Moreover, to the extent that plaintiff alleges a violation of General Municipal Law § 205 (e), the court considers this cause of action to be withdrawn as well, as plaintiff concedes the inapplicability of Section 205 (e) in his opposition to Arrow's motion for summary judgment, and also fails to state with particularity any predicate violations for the application of the statute.

Footnote 5:The court notes, however, that the witness statements submitted by plaintiff are unsworn and as such, will not be considered.

Footnote 6:The court also notes that in separate affirmations in partial support of plaintiff's summary judgment motion, ECC and Arrow claim that, based on the assertions in plaintiff's motion, plaintiff is conceding that defendants ECC and Arrow are "not responsible for the happening of this incident." Since plaintiff argues that the subject window was in the exclusive control of City at the time of plaintiff's accident, ECC and Arrow contend that they cannot be held liable for any negligence which caused the accident. Both ECC and Arrow also note that since they were not in control of the subject window at the time of the accident, the doctrine of res ipsa loquitur is inapplicable to them.

Footnote 7:Upon review of both plaintiff's deposition testimony and his affidavit submitted in support of his motion for summary judgment, the court finds that said documents are consistent, rather than contradictory or self-serving as defendants allege.

Footnote 8:City's alternative request to dismiss the complaint pursuant to CPLR 3211 is also denied, as City failed to specifically address this request for relief in its cross motion. In any event, the complaint states a cause of action against City and there are issues of fact regarding City's alleged negligence that preclude dismissal of plaintiff's claims against City.