Ingrassia v Retail Prop. Trust

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Ingrassia v Retail Prop. Trust 2011 NY Slip Op 33352(U) December 8, 2011 Supreme Court, Nassau County Docket Number: 1511/10 Judge: Karen V. Murphy Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] Short Form Order SUPREME COURT - STATE OF NEW YORK TRIAL TERM. PART 15 NASSAU COUNTY PRESENT: Honorable Karen V. Murphv Justice of the Supreme Court JASMIN INGRASSIA, Iridex No. 1511110 Plaintiff(s), -against- Motion Submitted: 10/5/11 Motion Sequence: 003, 005, 006 THE RETAIL PROPERTY TRUST , NEWMARK KNIGHT GLOBAL MANAGEMENT SERVICES, LLC and AAA MAINTENANCE, LLC, FRA Defendant(s). The following papers read on this motion: Notice of Motion/Order to Show Cause........................ Answering Papers.......................................................... Reply.................................................................. ............ Briefs: Plaintiff slPetitioner ' s........................................ Defendant' s/Respondent' s.................................. This motion by the defendant The Retail Propert Trust ("the Trust" ) for an order 3212 granting it inter alia , summary judgment against the defendant Newmark Knight Frank Global Management Services , LLC ("Newmark Knight") requiring it to defend and indemnifY it in this action is granted as provided herein. pursuant to CPLR This motion by the defendant Newmark Knight for an order pursuant to CPLR 3212 granting it summar judgment dismissing the complaint and all cross- claims against it is granted to the extent provided herein. This motion by the defendant Trust for an order pursuant to CPLR it summary judgment dismissing the complaint against it is denied. 3212 granting [* 2] The plaintiff in this action seeks to recover damages for personal injuries she sustained on December 20 2008 as she was walking to work on the sidewalk adjacent to Nordstrom s at the Roosevelt Field Mall. The mall propert is owned by the defendant Trust. The defendant Newmark Knight was under contract to perform snow removal services at the mall. The defendant AA Maintenance, LLC was under contract to perform snow removal services on the adjacent roadway and in the parking lot. The action against seek summary Maintenance , LLC has been dismissed. The Trust and Newmark Knight seeks judgment dismissing the complaint against them. In addition , Newmark Knight summary judgment dismissing the Trust's cross- claims for contractual and common law indemnification and in the alternative , the Trust seeks sumary judgment adjudging Newmark Knight liable contractually and/or pursuant to common law for defending and indemnifYing it in this action. The Trust also seeks summar judgment on its breach of contract claim based upon Newmark Knight's alleged failure to procure insurance for it. The facts pertinent to the determination of this motion are as follows: The plaintifftestified at her examination- be fore- trial in a companion case against the mall' s managing agent Simon Propert Group, Inc. that it had snowed " heavy and hard" the day before her accident and that although it was cold on the day of her accident, it was not precipitating. She testified that on the day of her accident , she parked her car in the parking garage across the street from Nordstrom s where she worked at approximately 7:00 a. m. and that while walking on the sidewalk adjacent to Nordstrom s, she fell on a patch ofice. Emilo Maza , a contract manager for Newmark Knight atthe time ofthe plaintiff s accident, testified at his examination- before- trial that Newmark Knight only had responsi- He testified that the sidewalk itself was the responsibilty of the mall' s Operations Director and that Newmark Knight would not take care of it unless specifically called upon to do so. He testified that when called upon to care for the sidewalk , the Operations Director would tell him how many people were needed. He testified that on the day ofthe accident , Newmark Knight probably had nine employees performing snow and ice removal at the mall. He testified that they stared at 3:00 a. m. or 5:00 a. m. and that by 7:00 a. , they had done the entrances and one round of the perimeter of the mall using gravity pushers and shovels supplied by the Trust including applying ice melt in front of Nordstrom s. He testified that while he was monitoring the work that was being done on the morning in question , he got a call around 7 :00 a. m. that someone had fallen near the employees ' entrance ofN ordstrom ' s. He testified bilty for snow and ice removal at the seven main entrances ofthe mall. that he did not go to the location immediately but when he arrived there "the site was clean and no additional work needed to be done. When shown photographs of the site where the plaintifffell , Maza admitted that it was Newmark Night' responsibilty to clear the snow and ice there that day. [* 3] Vincent D' Antone , the Assistant Mall Manager since June 2008, testified at his examination- before- trial that Newmark Knight was responsible for maintaining the outside grounds including snow and ice removal. The contract submitted by the Trust , which it represents to be its agreement with Newmark Knight renders Newmark Knight " liable for any injury caused to the (mall) or any persons or propert thereon by him or any of its employees or subcontractors in the Newmark Knight to indemnifY and hold (the Trust) harless from any loss , cost , damage or liabilty or other expense whatsoever that (the Trust) may suffer or incur as the result ofa failure of materials and workmanship. . . . " Newmark Knight also agreed to defend , indemnifY and hold the Trust harless from and against all third-par claims for bodily injury relating to or resulting from its performance or alleged non-performance of its services. Finally, the agreement Trust required Newmark Knight to procure commercial general liabilty insurance naming the performance of the services required (t)hereunder. " It also required of as an additional insured. 3212 , the proponent must make a prima facie showing of entitlement to judgment as a matter of law , tendering On a motion for summary judgment pursuant to CPLR sufficient evidence to demonstrate the absence of any material issues of fact." (Sheppard2d 98 (2d Dept. , 2004), affd. as mod. , 4 10 A. 3d 70 , 74 , 778 N. citing Alvarez v. ProspectHosp. 68 N. 2d 320, 324 , 501 N. 2d 572 Y.3d 627 (2005), Winegradv. New York Univ. Med. Ctr. 64 N. 2d 851 853 476 2d 923 (1986); 8 N. showing requires primafacie 2d316 (1985)). "Failure to make such E.2d 642 , 487N. Mobley v. King, a denial of the motion, regardless of the sufficiency of the opposing papers. (Sheppard- Mobley v. King, supra at p. 74; Alvarez v. Prospect Hosp., supra; Winegradv. New York Once the movant' s burden is met , the burden shifts to the opposing Univ. Med. Ctr. , supra. part to (Alvarez v. Prospect Hosp., supra establish the existence of a material issue offact. at p. 324). The evidence presented by the opponents of summary judgment must be accepted (See, Demshick v. 2d 166 (2dDept. Community Ho using Management Corp. 34A. D.3d518 , 521 , 824 N. 2d 563 (2dDept. 2006), citingSecofv. Greens Condominium 158 A. 2d 591 551 N. as true and they must be given the benefit of every reasonable inference. 1990)). '" A propert owner wil not be held liable for accidents occurring on its propert as a result of the accumulation of snow and! or ice until a reasonable period of time has passed following the cessation of the storm , within which the owner has the opportunity to (Lanos v. Cronheim 77 A. 3d 631 , 632, 909 quotingSfakianos v. Big Six Towers, Inc. 46 A. D.3d 665 2d 101 (2d Dept. , 2010), 2d 584 (2d Dept. , 2007)). " On a motion for summar judgment , the question of 846 N. whether a reasonable time has elapsed may be decided as a matter oflaw by the court, based ameliorate the hazards caused by storm. ", [* 4] citing Valentine upon the circumstances of the case. (Lanos v. Cronheim, supra at p. 632 v. City of New York 57 N. Y.2d 932 , 443 N. 2d 488 , 457 N. S.2d 240 (1982)). If the storm was in progress at the time of the accident or the defendants ' efforts had (Lanos v. not yet begun or were stil on- going, they would be S.2d 186 (1st Cronheim, supra; Rodriguez v. City of New York 52 A. D.3d 299 , 859 N. Dept., 2008). Here , however , there is no evidence that establishes that the storm continued at the time ofthe plaintiff s accident. The plaintiff s expert meteorologist's anticipated testimony on which the Trust relies in Reply establishes at best only that " light precipitation resumed during the evening hours of December 19 2008 and continued into the early morning hours 2008 of December 20 , 2008 (emphasis added). " It follows: "After 2:00 a. m. on December 20, only light snow fell , at times intermittently. " The plaintiff s expert meteorologist " is expected to testifY that an ice and!or melt/rain water that persisted into (the) early. . . morning hours shielded from liabilty. before 2:00 a. m. on December 20, 2008 would have frozen and formed ice and remained as ice on the concrete sidewalk and paved surfaces until after the time ofthe plaintiffs slip and untreated ground fall at 7: 15 a. m. (and) that the aforesaid ice would have remained on all surfaces at 7: 15 a. m. on December 20 , 2008 . . . (emphasis added). It is far from clear that the storm continued until when the plaintiff fell on December 20th . Furtermore , the evidence presented here indicates that efforts to clear the area where the plaintiff fell were not on- going but were in fact completed prior to her fall , leaving open the question of whether. Newmark Knight's efforts either created the dangerous condition or it remained on account of their negligence. 833 N. 162 , 761 N. D.3d 703 2d (See, Gil v. Manufacturers Hanover Trust Co. , 39 Tucciarone v. Windsor Owners Corp. , 306 2d 634 (2d Dept. , 2007); 2d 181 (1st Dept. , 2003)). Joseph v. Pitkin Carpet Inc. (44 A. D.3d 462 , 843 N. Dept., 2007)) is misplaced. Theplaintiffs fall here was not caused by a failure to The Trust's reliance on 586 remove all ofthe snow: She slipped on ice and a defendant may be liable when its efforts made (Joseph v. Pitkin Carpet Inc., supra the sidewalk more dangerous i.e 2d 30 (1st Dept. D.3d 169, 793 N. atp. 463 citing Sanders v. City of New York 17 A. 2d464 (pt Dept. , 1988)). The 2005); Glickv. City of New York 139A. 2d402 , 526N. , increased the hazard. defendant Trust's motion for summary judgment dismissing the complaint against it must therefore be denied. As for Newmark Knight , a contractual obligation standing alone wil not give rise to tort (Foster v. Herbert Slepoy Corp. 76 A. D.3d 210 , 213 , 905 liabilty in favor of a third citng Espinalv. Melville Snow Contractors, Inc. 98 N. 2d226 (2dDept. 136 , 138 , 773 N. E.2d 485 , 746 N. S.2d 120 (2002)). There are however three exceptions to part. , 2010), this general rule: [* 5] (A) part who enters into a contract to render services may be said to have assumed a duty of care - and thus be potentially third persons: (1) where the contracting liable in tort - to part, in failing to exercise reasonable care in the performance of his duties , launchers) a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting part' s duties and (3) where the contracting par has entirely displaced the other par' s duty to maintain the premises safely. see also, Church ex rei. Smith (Espinal v. Melville Snow Contractors, Inc., supra at p. 140; v. Callanan Industries, Inc. 99 N. 2d 104 , 111- 112 , 782 N. E.2d 50 , 752 N. S.2d 254 (2002)). The defendant Newmark Knight has established its entitlement to summar judgment dismissing the complaint against it by demonstrating that the plaintiff was not a part to its contract with the Trust and it accordingly owed her no duty. (Foster v. Herbert Slepoy Corp., supra at p. 214). And , since the plaintiff has not alleged facts in her complaint or her Bil of Pariculars which would call any ofthe Espinal exceptions into play, Newmark Knight need not (Foster v. Herbert establish that they did not apply in order to obtain sumary Slepoy Corp., supra at p. 214). The burden accordingly shifts to the plaintiff to establish the existence of a material issue of fact with respect to Newmark Knight' s liabilty. judgment. The plaintiffhas not opposed Newmark Knight' s motion. Plaintiff and NewmarkKnight entered into a stipulation of discontinuance dated August 10 2011. The defendant Newmark Knight's motion is granted to the extent that the complaint against it is accordingly dismissed. The Trust' s cross- claim against Newmark Knight is converted to a third-part claim. 2d 548 (2dDept. (Baten v. North Fork Bancorporation, Inc. 85 A. D.3d 697 , 925 N. 2011)). The agreement submitted by the Trust in support of its motion wil be accepted representing its agreement with Newmark Knight. While Newmark Knight maintains that it has never been " authenticated " it nevertheless presumes that it is " at least parially accurate. " And in its response to the Notice to Admit , Newmark Knight only faulted the absence of additional bid proposals , which are irrelevant to the determination of this motion. In documentation fact, Newmark Knight actually produced the portions of the contract on which the Trust presently relies in discovery as representing the paries ' agreement. The same agreement was produced at depositions and its validity was never called into question. The liabilty, indemnity and insurance requirements are not called into question. [* 6] contract." The right to contractual indemnification depends upon the specific language of the 2d 143 (2d (George v. MarshaUs of MA, Inc. 61 A. D.3d 925 , 930, 878 N. 2d 658 citing, Canela v. TLH 140 Perry St. LLC 47 A. D.3d 743 , 744 , 849N. Dept. , 2009), (2d Dept. , 2008)). " The promise to indemnifY should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances. (George v. MarshaUs ofMA, Inc., supra; Hooper Assoc. v. AGS Computers see also, Kielty v. AJS 2d 365 (1989); 74 N. 2d 487 491- 492 , 548 N. 2d 903 549 N. (2dDept. 2011);Roldan v. New Construction ofL.L, Inc., 83 A. D.3d 1004 , 922N. S2d467 81 A. D.3d 625 916 N. S.2d 162 (2d Dept. , 2011)). York University, The paries agreement rendered Newmark Knight " liable for any injury caused to persons by him or its employees in the performance of services required" under the agreement. The Trust has conclusively established that the accident arose out of or occurred in connection with work done by Newmark Knight. The Trust is accordingly entitled to contractual indemnification. In any event , even if the validity of their agreement has not been established , the Trust would nevertheless be entitled to common law indemnity from Newmark Knight. ''' The principle of common law or implied indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured at p. 929 citing Curreri v. Heritage Prop. part. (George v. MarshaUs of MA, Inc., 2d 278 (2d Dept. , 2008)). ''' , in fact , an Inv. Trust, Inc. 48 A. D.3d 505 , 507, 852 N. injury can be attributed solely to the negligent performance or nonperformance of an act solely within the province of the contractor , then the contractor may be held liable for indemnification at p. 929 citing Curreri v. Heritage to an owner. (George v. MarshaUs of MA, Inc., To obtain common law indemnification , the Trust must show that it was not negligent and that Newmark Knight was responsible for the negligence that citing (George v. MarshaUs of MA, Inc. 2d 542 (2d Dept. , 2006); Benedetto v. Carrera Realty Corp. 32 A. D.3d 874 875. 822 N. The Trust has met that burden. see also, Kielty v. AJS Construction of L. Whether Newmark Knight was contractually obligated to shovel the sidewalk surrounding the mall at all times or only when called upon to do so is irrelevant because it is beyond dispute that the sidewalk' s condition at the time of the plaintiffs fall was caused by anyone , it was Newmark Knight. That the tools and supplies were furnished by the Trust is also irrelevant supra supra Prop. Inv. Trust, Inc., supra). , supra contributed to the accident. at p. 929, L, Inc., supra). if because there is no evidence that they in any way played a role here. common law indemnification in what has become a third-par 2d 237 (1997)). 2d 177 681 N. 2d 404 659 N. claim. The Trust is entitled to (Raquet v. Brown , 90 Turning to the Trust's breach of contract claim ( a) part seeking summar judgment based on an alleged failure to procure insurance naming that part as an additional insured must [* 7] demonstrate that a contract provision required that such insurance be procured and that the 83 A. D.3d provision was not complied with (citations omitted). 2d 101 (2d Dept. , 2011)). The Trust has met that burden. Newmark 650, 652 , 922 N. Knight opposes on the ground that the policies have not been placed before the court and therefore, priority cannot be determined. It is precisely for that reason that the Trust is entitled to summar judgment: Newmark Knight has not produced a policy nor has it submitted any (DiBuono v. Abbey, LLC, evidence whatsoever that it procured the insurance covering the Trust as required by the paries agreement. The court notes that the Trust's entitlement to summary judgment on this claim would lay to rest Newmark Knight's claim that the Trust is not entitled to recover because its (See, DiBuono v. Abbey, LLC, supra at p. 652 citing McGill 2d 992 (2d Dept. , 1997)). v. Polytechnic Univ. 235 A. 2d 400 651 N. role in the accident is unclear. In conclusion , the complaint against Newmark Knight is dismissed. The Trust's claims against Newmark Knight are converted to third-part claims and the Trust is granted summary judgment against Newmark Knight requiring it to defend and indemnifY it contractually and against Newmark under common law here. The Trust is also granted summar judgment Knight on its breach of contract claim based upon Newmark Knight's failure to procure insurance as required by their contract. The foregoing constitutes the Order of this Court. Dated: December 8 , 2011 Mineola , N. ENTFRJ;D DEC 12 2011 NASSAU COUNTY COUNTY CLERK' S OFFICE

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