DiGirolomo v New York Tr. Auth.
Annotate this CaseDecided on August 27, 2009
Supreme Court, New York County
Anthony DiGirolomo, Plaintiff,
against
New York Transit Authority and TISHMAN REALTY & CONSTRUCTION CO., INC., Defendants.
118913/06
Lottie E. Wilkins, J.
Motion sequence 003 and 004 are consolidated for decision herein. In sequence 003, third-party defendant ABM Maintenance moves for summary judgment dismissing the third-party complaint made against it by defendant/third-party plaintiff Tishman Realty & Construction Co., Inc. ("Tishman") and all cross claims. In sequence 004, third-party defendant Graham Restoration Co., Inc. also moves for summary judgment dismissing Tishman's third-party complaint and all cross claims but also adds a claim for sanctions against Tishman pursuant to 22 NYCRR § 130-1.1. In addition to the moving affirmation and exhibits submitted by ABM Maintenance (ABM) in sequence 003, the Court received an affirmation in opposition to the motion for summary judgment from defendant/third-party plaintiff Tishman dated July 23, 2009 and a reply affirmation from ABM dated August 4, 2009. Submitted along with the motion by third-party defendant Graham Restoration Co. ("Graham") was another July 23, 2009 affirmation from Tishman in opposition to the request for sanctions and a reply affirmation from Graham dated July 29, 2009. The underlying action seeks damages for personal injuries allegedly sustained by plaintiff [*2]Anthony DiGirolomo on April 23, 2006 when he fell down a set of stairs in the subway station at 42nd Street and 8th Avenue in Manhattan. The particular stairwell was located at a station entrance near the northeast corner of that intersection. Plaintiff alleges that, as he was descending the subject stairwell at about 2:00 a.m., the right-side handrail which plaintiff was holding onto came out from the wall causing him to lose his balance and fall down the stairs. Plaintiff commenced this action with a summons and complaint filed on December 21, 2006 naming the New York City Transit Authority and Tishman as defendants. Following a motion pursuant to CPLR § 3211 the complaint and all cross claims against the New York City Transit Authority were dismissed by order of the Court dated July 15, 2008.
Defendant/third-party plaintiff Tishman commenced a third-party action against ABM Maintenance by third-party summons and complaint dated July 9, 2008 claiming breach of contract and entitlement to common law indemnification or contribution. Tishman pleaded similar causes of action against Graham Restoration in the same complaint.
In its motion for summary judgment ABM argues that at all relevant times it was an independent cleaning contractor hired by the property manager, Tishman, to perform cleaning services in the stairwell and other parts of the subway station where plaintiff's accident occurred and that, as an independent contractor, it did not have responsibility for inspection, maintenance or repair of the handrail which is claimed to have caused plaintiff's accident. According to ABM, its cleaning contract did not effect a transfer or delegation of Tishman's general duty to maintain the premises in a safe condition or otherwise give rise to a duty of care owed to plaintiff. ABM further argues that, even if it owed some duty to plaintiff by virtue of its contract with Tishman, there is no evidence in the record to support a finding that ABM had notice of a defective condition or that its cleaning activities caused the handrail to fall into disrepair.
On its motion, Graham Restoration argues that it is entitled to summary judgment because the record from discovery shows it did not perform any work on the subject handrail until it was called in by Tishman to repair it 10 days after plaintiff's accident occurred. Graham further argues, as does ABM, that it did not owe a legal duty to plaintiff (or Tishman) to maintain or repair the handrail at the time of plaintiff's accident. In the alternative, assuming that it did owe some duty to plaintiff, Graham also argues that it did not have actual or constructive notice of the defective condition of the handrail at the time of plaintiff's accident. In support of its request for Rule 130 sanctions ABM argues that, given the factual circumstances surrounding its involvement in this case — specifically that ABM owed no duty of care and was not even called in to repair the handrail until after plaintiff's accident had occurred — the third-party complaint by Tishman is completely without merit in fact or law and therefore warrants the imposition of sanctions.
Defendant/third-party plaintiff Tishman has not submitted opposition to that portion of
Graham's motion which seeks summary judgment, therefore, analysis of Tishman's opposition to
that relief is necessarily limited to the case against ABM. Tishman argues that an issue of fact
exists as to ABM's liability since its employee was responsible for daily cleaning of the subway
stairwell and the handrails within it. According to Tishman, the fact that ABM's employee had in
the past used yellow caution tape to cordon off a defective handrail when he noticed such a
condition bars summary judgment in this case. At a minimum, the fact that ABM's employee was
present in the stairwell to clean periodically throughout the day creates an issue of fact as to
[*3]notice of the defective condition of the handrail. It is of no
moment, according to Tishman, that ABM did not owe a duty of care with respect to
maintenance of the handrail directly to plaintiff since the claims against ABM sound in common
law and contractual indemnification and, in that regard, it is alleged that ABM breached its duty
to Tishman to adequately police the stairwell.
Analysis
Summary judgment is a drastic remedy that should be granted only when no genuine issue of fact requiring trial exists (see, Andre v Pomeroy, 35 NY2d 361 [1974]). Indeed, the Court's role on a motion for summary judgment is issue-finding, not issue-solving, and all competent evidence must be viewed in the light most favorable to the party opposing summary judgment (see, B-S Industrial Contractors, Inc. v Town of Wells, 173 AD2d 1053 [3d Dept 1990]). For these reasons the standard for summary judgment is high: The movant must present evidence, in admissible form, which is sufficient to warrant the court directing judgment as a matter of law (see, CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557 [1980]). The failure to make the required showing will result in denial of the motion regardless of the sufficiency of the opposing papers (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). When the required showing is made, however, it is then up to the party opposing summary judgment to adduce facts sufficient to raise an issue requiring trial (see, Zuckerman v City of New York, supra). The contract between ABM and Tishman requires ABM to provide cleaning services in the E-Walk building at 243 West 42nd Street and portions of the subway station below it, including the area where the subject handrail was located. Among the many generalized cleaning duties in the building and on the sidewalk outside of it, the contract calls for ABM to "police subway stairwells" on a daily basis and to sweep and dust the stairwells on a weekly basis. In practice, it appears the stairwells were cleaned much more frequently. The contract also contains an indemnification clause in which ABM agreed to indemnify and hold Tishman harmless for any liability caused by the willful or negligent act or omission of ABM, its employees or agents.
According to Tishman's witness who was deposed in 2008 and again in 2009, Tishman had its own on-site staff performing daily inspections and routine maintenance in the common areas of the E-Walk building but cleaning and janitorial services were contracted out to ABM. At the time of plaintiff's accident ABM personnel were expected to work every day from 6:00 a.m. until either 3:00 p.m. or 4:00 p.m. The Tishman witness further testified that, in the event an ABM employee noticed a broken handrail in the subway stairwell while cleaning and policing them, the ABM employee was expected to report the condition to building management. There were either one or two prior occasions where an ABM employee notified Tishman management of a broken handrail in the subway stairwell and, in both cases, the witness or his staff responded by cordoning off the defective handrail with caution tape and, on at least one occasion, blocking the entrance to the stairwell with police barricades until a repair contractor could be brought in. With respect to ABM, however, the Tishman witness did not state that ABM employees were required to inspect for or repair defective handrails or do anything other than report such a condition when it was observed in the course of ABM's cleaning and policing functions.
ABM's witness, Thomas Mavins, testified that he was a porter who worked on-site at the E-Walk building seven days a week from 6:00 a.m. to 3:00 p.m. There were no other ABM [*4]employees regularly assigned to the premises in 2006. His daily routine consisted of general cleaning and trash collection on the ground level of the building and in the subway station below it. Among his duties, Mr. Mavins testified that he would sweep the stairwells leading into the station every day and police the area throughout the day. Although there was no indication of a loose or defective handrail in the subway stairwell on the day prior to plaintiff's accident, Mr. Mavins testified that if he saw or was notified of such a condition he would report it to Tishman personnel. He additionally testified that on a prior occasion it was he who used yellow caution tape to secure the handrail to the wall and to cordon off the stairwell.
Both ABM and Graham rely on a decision from Supreme Court, Queens County granting summary judgment in a case involving the same parties, virtually identical facts and similar legal claims (see, Aragundi v Tishman Realty & Constr. Co., Sup Ct, Queens County, February 6, 2009, Agate, J., index no. 23454/2007). In Aragundi, plaintiff was injured when she fell down the stairwell in the northeast corner of the subway station at the intersection of 42nd Street and Eighth Avenue due to a malfunctioning handrail. As in the present case, ABM was the janitorial contractor for the stairwell and Graham Restoration was called in to repair the handrail after the accident. With respect to Graham, the Court held that the undisputed evidence that Graham Restoration was not called in to repair the malfunctioning handrail until after plaintiff's accident occurred conclusively established its entitlement to summary judgment. As for ABM, the Court agreed that as an independent cleaning contractor to Tishman, ABM did not owe a duty of care directly to plaintiff under circumstances where the contract at issue did not effect a comprehensive delegation of Tishman's duty as property manager to keep the premises in a reasonably safe condition. Moreover, since ABM's contractual obligations in the stairwell were limited to cleaning, and since the "policing" required of ABM in its contract with Tishman was "in furtherance of its duties related to the cleaning services it provided," ABM was entitled to summary judgment dismissing the claims for indemnification.
While the holding in Aragundi is merely persuasive authority, the logic of that decision is compelling. With respect to Graham, the fact that its involvement with subject handrail was limited to be being called in to repair it after the accident occurred conclusively establishes its entitlement to judgment as a matter of law. This fact is apparently not lost on Tishman since it does not oppose that portion of Graham's motion.
As for ABM, it is settled law that its cleaning contract with Tishman does not give rise to a duty owed directly to plaintiff under circumstances such as these where the contract does not envision a comprehensive delegation of Tishman's duty to maintain the premises in a reasonably safe condition (see, Espinal v Melville Snow Contractors, Inc., 98 NY2d 12 [2002]). However, the more crucial question here is Tishman's entitlement to indemnification from ABM by reason of the acts or omissions of ABM's employees or their breach of duties under the parties' contract.
The analysis in Aragundi is equally persuasive on the claims for indemnification. Under its cleaning contract, ABM did not owe a duty to Tishman to inspect for defective handrails in the subway stairwell or to take any action to remedy such a condition if one was found. Moreover, the "policing" requirement in the contract cannot reasonably be construed so broadly as to create an obligation on the part of ABM's custodial staff to inspect for mechanical defects with stairwell equipment or undertake corrective action if one was found. Nor should the that fact that the particular ABM employee responsible for cleaning this stairwell had in the past taken [*5]steps to warn the traveling public of a broken handrail — in addition to reporting it to building management — be used to broaden the scope of ABM's duty to Tishman here. For one thing, that past conduct was not based on any duty owed to Tishman, either at common law or in its contract with ABM. To find the existence of a duty based on the gratuitous past good deed of a diligent independent contractor would only act as a disincentive to such laudable conduct in the future. The duty to maintain the subject handrail in a reasonably safe condition does not lie with the independent contractor hired to clean the stairwell where the handrail was located. Since there is no duty to begin with, questions of notice, foreseeability, or any other allegations tending to establish a breach of duty, are quite beside the point (see, Pulka v Edelman, 40 NY2d 781[1976]; see also, Palka v Servicemaster Mgt. Servs. Corp. 83 NY2d 579 [1994]). The remaining arguments by Tishman in opposition to ABM's motion for summary judgment, including the somewhat circular argument concerning its claim for breach of contract, are unpersuasive (see also, Aragundi, supra [finding, in the particular facts of that case, that ABM did obtain insurance naming Tishman as an additional insured]).
Turning finally to the request by Graham for sanctions, it does not seem quite so clear to this Court that Tishman acted frivolously in commencing a third-party action against Graham. The repair contractor certainly did have some connection to the defective handrail which might have formed the basis for third-party liability. It is only with the benefit on hindsight, and a recent favorable decision from another court, that the third-party action against Graham appears so particularly weak. In any event, Tishman's decision not to oppose summary judgment for Graham should count as at least some evidence that its motives were not frivolous or vexatious. Accordingly, it is
Ordered that the motion for summary judgment by third-party defendant ABM is granted; and its further
Ordered that so much of the motion by third-party defendant Graham Restoration as seeks summary judgment dismissing the third-party complaint is granted without opposition; and it is further
Ordered that the request by Graham Restoration for sanctions and/or costs is denied.
This constitutes the decision and order of the court.
Dated: August 27, 2009_______________________________________
Lottie E. Wilkins, J.S.C.
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