Araya v Viacom Outdoor Inc.
Annotate this CaseDecided on March 9, 2009
Supreme Court, Kings County
Maria Araya, Plaintiff,
against
Viacom Outdoor Inc., Defendant.
655/2006
Plaintiff's Attorney
Newman, Analone & Associate, LLP
97-45 Queens Blud.
Forest Hills, New York 11374
Gregory S. Newman
(718) 896-2700
Defendants Attorney -
McAndrew, Conboy & Prisco, Esq.
95 Froehuch Farm Blvd.
Wppdbury, New York 11797
Matthew A.D. Canzoneri
(516) 921-8600
Wayne P. Saitta, J.
Defendant, VIACOM OUTDOOR INC., (hereinafter "Defendant"), moves this
court for an Order pursuant to CPLR § 3212 for Summary Judgment against the Plaintiff
and granting further relief as this Court deems just and proper.
Upon reading the Notice of Motion of Matthew A.D. Canzoneri, Esq., Attorney for Defendant, VIACOM OUTDOOR, INC., dated July 10th, 2008, together with the Affirmation in Support by Matthew A.D. Canzoneri, Esq., dated July 10th, 2008, and all exhibits annexed thereto; the Affirmation in Opposition of Gregory S. Newman, Esq., Attorney for Plaintiff, MARIA ARAYA, dated October 6th, 2008, and all exhibits annexed thereto; the Reply Affirmation by Matthew A.D. Canzoneri, Esq., dated October 21st, 2008; and after argument of counsel and due deliberation thereon, Defendant's motion for Summary Judgment is denied for the reasons set forth below.
FACTS
On July 28, 2003, Plaintiff was standing in a bus shelter near the intersection of Jamaica Avenue and Woodhaven Boulevard in Queens, NY. The shelter was two sided; there was a side panel and one to the rear as Plaintiff stood within it. Plaintiff was injured when the side panel, made of plexiglass, fell out of its frame, striking her. She noted that where there are often advertisements in the side panel, at the time the panel fell there were none. The panel struck Plaintiff in the shoulder, hips and back but she was not knocked to the ground. She denies having had any contact with the panel prior to its falling.
The City of New York entered into a franchise agreement with Viacom, as the successor in
interest of Miller Signs Associates, to operate the city bus shelters at the time of the accident.
Viacom thereafter contracted with Shelter Express Corp., (hereinafter "Shelter"), to maintain and
clean the bus shelters. It is not disputed that the shelter at issue was one that was to be
maintained and cleaned under the terms of each of the two contracts.
ARGUMENTS
Defendant Viacom Outdoor Inc. argues that it is entitled to summary judgment
as it neither created nor had notice of any dangerous condition. Viacom also asserts that it is not
liable because it subcontracted out the responsibility for maintenance and repair of the shelters to
Defendant Shelter.
Plaintiff responds stating that Shelter was an agent of Viacom inasmuch as Viacom contracted with it to maintain and repair the shelter, and therefore Shelter's actions are imputed to Viacom. Plaintiff argues it is not clear whether the shelter had been recently inspected, and if so by whom.
ANALYSIS
A motion for summary judgment will be granted "if, upon all the papers and
proof submitted, the cause of action of defense shall be established sufficiently to [*2]warrant the court as a matter of law in directing judgment in favor
of any party". CPLR §3212 (b).The "motion shall be denied if any party shall show facts
sufficient to require a trial of any issue of fact." Id.
When considering a summary judgment motion for failure to make out a case, this Court is required to accept the Plaintiff's evidence as true and give it the benefit of "every reasonable inference which can be reasonably drawn from that evidence." Secof v. Greens Condominium, 551 NYS2d 563, {158 AD2d 591} citing, Goldstein v. Hauptman, 131 AD2d 724.
If the defendant fails to shift the burden of proof to the plaintiff, that is if the defendant fails to demonstrate that there is no material issue of fact in question, then the motion shall be denied without regard or consideration of the papers of the party opposing the motion. (When a party moving for summary judgment fails to meet its burden of establishing its prima facie entitlement to judgment as matter of law, the sufficiency of the opposing papers need not be considered.) Cendant Car Rental Group v. Liberty Mut. Ins. Co., 852 NYS2d 190, N.Y.App.Div. (2nd Dept.2008). See also Warrington v. Ryder Truck Rental, Inc. 35 AD3d 455, 826 NYS2d 152, N.Y.A.D. (2nd Dept.,2006); JMD Holding Corp. v. Congress Fin. Corp., 795 NYS2d 502, 828 NE2d 604 {4 NY3d 373} ; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316, 476 NE2d 642; Hughes v. Cai, 31 AD3d 385, 818 NYS2d 538.
Defendant's motion papers are insufficient for the purposes of summary judgment.
Viacom was obligated under the contract with the City to perform regular inspections and maintain the bus shelters. When they contracted with Shelter to perform those services, they did not relieve themselves of liability for failure to maintain the shelters. In the matter of Morales v. Shelter Express Corporation, 44 AD3d 913, 844 NYS2d 368 (2007), a case which was also based upon Viacom's liability for a injury incurred at a city bus shelter, the Appellate Division, Second Department, granted summary judgment to Shelter as a subcontractor. It held that Shelter owed no duty to the public because the contract was not sufficient to constitute a delegation of the duty from Viacom to Shelter. The Court stated "[t]he maintenance contract entered into by Shelter Express with Viacom's predecessor in interest did not constitute a comprehensive and exclusive obligation which displaced the owner's duty to safely maintain the bus shelter where the accident occurred." Id. at 368.
Thus the contract with Shelter did not relieve Viacom, as franchisee, of liability to the public for failure to safely maintain the shelter.
Viacom also argues that it neither created nor had actual or constructive notice of any dangerous condition and therefore cannot be held liable for Plaintiff's loss.
The maintenance contract between Viacom and Shelter, (hereinafter "the contract"), provides that Shelter would clean the "inside glass of the display panels" each time the advertising placards are changed or at least on a monthly basis. Shelter was further obligated to maintain "[a]ccurate records of the [maintenance] services" [*3]and that the records were to be "maintained and transmitted to NYSM on a continuous basis".
Defendant submits an affidavit of Glen Herskovitz, an employee of CBS Outdoor Inc. which acquired Viacom after the date of the incident, to show it had no notice of the condition which caused the loss.
Herskovitz states in the affidavit that CBS is the custodian of Viacom's records concerning the bus shelters and that "[a] search of the records maintained fails to indicate any complaints regarding the shelter. I have searched the records maintained with respect to the shelter and there are no records of Viacom being on notice of any problems with respect to the subject shelter".
However, Defendant did not submit an affidavit from anyone with knowledge of Shelter's records to demonstrate that Shelter had no actual or constructive notice of the condition which caused the loss. Nor does Herskovitz state that he reviewed Shelter's records for the relevant time period or that Shelter's records did not note the condition alleged herein.
Herskovitz discusses Defendant's obligations under the contract but does not state that Shelter actually made the inspections required by the Contract.His statement that Viacom was not on notice of the defect is merely a conclusion based on the assumption that Shelter was fulfilling its obligations to perform regular maintenance and inspections, and notifying Viacom of any defects. Further, Shelter's failure to notify Viacom of the hazardous condition does not mean Shelter did not have notice.
It is well settled that a principal may be held liable for the acts of its agent when the agent is acting in its capacity as agent. "The general rule is that knowledge acquired by an agent acting within the scope of his agency is imputed to his principal and the latter is bound by such knowledge although the information is never actually communicated to it". Center v. Hampton Affiliates, Inc., 66 NY2d 782, 497 NYS2d 898, (1985), citing Farr v Newman, 14 NY2d 183, 187; Henry v Allen, 151 NY 1, 9.
Viacom contracted the maintenance and repair of the shelters to Shelter and therefore Shelter was acting as its agent in that capacity. If Shelter had notice of the condition then notice can be imputed to Viacom even if Shelter did not actually give Viacom notice of the condition. Based on the submissions made in support of this motion, Defendant Viacom has not shown that there is no question of fact as to whether it, through its agent Shelter, had notice of the condition that caused the accident.
WHEREFORE, the Defendant's motion for summary judgment is herein denied. This shall
constitute the decision and order of the court.
ENTER,
_______________________________
JSC
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