Chestnut v Aramark Facility Servs., LLC

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Chestnut v Aramark Facility Servs., LLC 2012 NY Slip Op 30271(U) February 2, 2012 Supreme Court, New York County Docket Number: 114867/08 Judge: Judith J. Gische 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. lNED ON 21612012 [* 1] q SUPREME COURT OF THE ST TE OF NEW YORK - NEW YORK COUNTY PRESENT: HON. JUDIT J. GISCHE Justice -. . . .. . . . . PART 10 .- .. . . INDEX NO. MOTION DATE V - MOTION SEQ. NO. MOTION CAL. NO. Defendant ( s ) . E The following papers, nurnbcrod 1 to were read on this motion tolfor I - 0 3 2012 - I PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affldavits - Exhibits ... I Answering Affidavits - Exhibits 1 Replying Affidavits Cross-Motion: I -.I 1\4' Yes No Upon the foregoing papers, the court's dccision on this (these) motion (s) is as follows: \i $ i l ''a'.-''L ~ x2 \,'(?,-, , - ' <-j! 2-7 + 4''. , Dated: I v 8 Check one: Check if appropriate: 1 Hon. Ju,d$hb. Gische, J.S.C. 7, FINAL DISPOSITION 1 1 DO NOT POST . 1 I y k. / ( +NON-FINAL 0 d T i o N REFERENCE I I. 1 SETTLElSUBMlT ORDER [* 2] SUPREME COURT OF THE STATE OF NEW YORK I A S PART 10 COUNTY OF NEW YORK: DEBORAH C H E S T N U T , Decision/ Order Index No. 3.14867/08 Seq No. 001 Plaintiff, Present: - against - Hon. Judith J. Gische J.S.C. ARAMARK F A C I L I T Y S E R V I C E S , LLC, and VILLAGE CARE OF NEW YORK, I N C . , DefendantsR e c i t a t i o n , a s required b y CPLR § 2219 [a] of t h e p a p e r s considered in l:he r e v i e w of t h i s ( t h e s e ) m o t i o n (s): FEB 0 3 2012 NEW YORK COUNTY CLERK'S 0i-r' N UM B E R E D PAPERS Villaye C a r e n/m ( 3 2 1 2 ) w/MCG affirm, exhs . . Aramark x/m w / F D T affid, exhs . . . . . . . . Chestnut opp to Village w/TKM affirm, exhs . . Village reply y / M C G affirm, exhs . . . . . . . Village opp to Aramark w/MCG affirm, e x h s . . Aramark r e p l y and further support w / F D T affid Steno minutes 10/20/12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . 1 2 3 4 5 6 7 _____ Upon the foregoing p a p e r s , the decision a n d o r d e r of the court is as fol.lows: JUDITH J. GISCHE, J . : In this action to recover monetary damages as t h e result of injuries plaintiff sustained in a w o r k p l a c e accident, defendant Village Care of N e w York, Inc. (Village Care) moves for summary judgment (CPJ,R 3212) dismissing plaintiff's complaint, as w e l l as dismissing co-defendant Aramark Facility Services, LLC,'s (Aramark) cross claim f o r indemnification and contribution. Pagc 1 of 9 ' [* 3] Aramark cross-moves for summary judgment ( C P L R 3212) : ( a ) dismissing plaintirf's complaint, (b) dismissing all of Village Care's cross claims a g a i . n s t it, (c) granting summary judgment on i - t s cross claim against Village Care, and ( d ) setting the matter down for an inquest on t.he issue of damages. These rnoLions were timely brought after plaintiff filed her note of issue. CP1,R 5 3232; Brill v. City of New York, 2 N.Y.3d 648 (26 Dept. 2004). F o r the reasons stated below, b o t h Village Care's motion and Aramark's cross motion are denied. Background Plainti-ff, an employee of nonparty Rivington House, alleges that on August 18, 2007, s h e was working as a nurse's aide at 45 Rivington Street, New York, New York ([;he premises), when she slipped and fell. on a slippery 1iqui.d substance on the f l o o r o ¬ unit 4E. In her verified amended complaint, plaintiff alleqes that both Aramark and Vi.llage Care operate and manage thc Rivington House and were responsible f o r performing cleaning and maintenance services at that location; and that, further, Aramark a n d Village Case were grossly negligent and demonstrated a wanton and willful conscious disregard for plaintiff's safety in causing or a l l o w j . n y a dangerous condition to exist for some time prior to Pagc 2 of 9 [* 4] her accident. In its answer, Aramark cross-claimed for common-law and contractual indemnification, as well as for contribution from Village Care. Similarly, Village Care cross-claimed against Aramark for contractual and common-law indemnification, and contribution, as well. as for b r e a c h of contract for the failure to procure insurance. It is uncontested that, on January 1, 2004, Vj.llage Care entered into an Administrative Service Agreemcrlt (the Admini.strative Service Agreement) with Rivington House, in which Village Care was to act as the Administrator, advising and providing administrative, financial, and management consulting services to Rivington House. Additionally, a1.1 parties agree that, on January 1, 2006, Village Care entered into a Management Services Agreement (the Management Services Agreement) with Aramark. Despite these contracts, Village Care asserts that, because, at the time of plaintiff's alleged accident, i.t did not exercise any of the day-to-day c o n t r o l of Rivington House and was not the owner, operator, lessee or manager of the premises, it entitled to dismissal of all plaintiff's claims. j.s Additionally, Village Care avers that it had no duty to plaj-ntiff and did not cause or have notice of any defective condition in the premiscs. Village Care further asserts that Aramark is not entitled to Pagc 3 of 9 [* 5] indemnity or t o contribution from Village Care, as Aramark has not estahlishcd i t s own freedom from negligence arising from plaintiff's alleged accident. In its cross motion, Aramark seeks to dismiss plaintiff's negligence claims, maintaining that it neither had a duty to plaintiff, n o r did it c a u s e or have notice of a defc?ctive condition on the premises. Additional.ly, Aramark contends that it is entitled to dismissal of Village Cares' c r o s s claims, as it was not negligent in plaintiff's alleged accident. Finally, Aramark seeks indemnification and defense from Village Care in the instant a c t i o r i based upon the indcmni.ty provision of the Management Services Agreement. Discussion Both Aramark and Village Care first s e e k summary judgment dismissing plaintiff's complaint in its entirety. "To maintain a negligence cause of action, [a] plaintiff must be able to prove the existence o f a duty, breach [of that d u k y ] and proximate cause." Kenney v City of N e w York, 3 0 A D 3 d 261, 262 (1st Dept 2006). The first requirement is to establish t h a t the alleged wrongdoer owed a duty to such plaintiff. "[A] contractual obligation, standing alone, will generally not give rise to Lort liability in f a v o r of a third party." Kspii-idl v Melville S n o w C o n t - r s . , 98 NY2d 136, 138 (2002). However, there are three exceptions to this g e n e r a l rule: Pagc 4 of 9 [* 6] (1) where a p a r t y c o n t r a c t s with a n owner or c o n t r a c t o r and t h e n fails to excrcise reasonable care in t h e performance of its duties, (2) the contractor "launche[s] a force or instrument of h a r m , " or (3) the injured worker has an expcctation t . h a t the contractor wil.1. continue to perform its duti.es and it does not. I d . at 140; see also Church v C a l l a n a n I n d u s . , 99 NY2d 104 (2002). l Village Care r c l . i e s on the Administrative Service Agreement, which sets forth an allegedly arm's-length contractual relationship between it and the Rivington House, to aver that it had no duty to plaintiff. However, Villagc Care admits that it is Rivington House's corporate parent, and that as part of its administrative duties under the Administrative Service Agreement, it took it upon i t s e l f t-o engage Aramark f o r Management Services, incl,uding clcanirig. S c c Examination Before 'Trial (ERT) of Emma DeVito, at 8; see also Management Services Agreement (Exh. EVS), 1 [Tlhe c o u r t in C h u r c h identified those circumstances as: first, "where the promisor [sic], while engaged affirmatively in discharging a contractual obligation, creates an unreasonable risk of harm to others, or increases that risk;" second, "where the plaintiff has suffered injury as a result of reasonable reliance u p o n the defendant's continuing performance of a contractual obligation;" and third, "'where the contractinq party has entirely displaced the other party's duty t.o maintain the prcmj-ses safely. 'I T . i . m m i n s v T i s h r i l a n C o n s t r . C n r p . , 9 AD3d 62, 66 (1st DepL), lv d i s m i s s e d 4 NY3d 739 (2004) (internal citations omitted). Page 5 o l 9 [* 7] Notice of C r o s s Motion, E x h . D. Further, pursuant to the Management Services Agreement, although it was Aramark that was to provide a manager who would ~ I coordinate the management and activities of the services employees at the premises, the "[slervice [elmployees will be provj-ded by, and will be employees of, Village Care for Rivington House arid for Village Care Nursing Home." See Management Services Agreement, Exh. EVS. All of these factors combi.ned raisc mat-erial questions of fact as to whether Village Care was an entity that had a duty to plaintiff at t h e time of her alleged accident. As respects Aramark, the Management Services Agreement r e q u i r e d Acarnark to perform certain duties, including making staffing recommendations, tracking employment, conducting performance evaluatj.ons, training employees, and holding team meetings. Additionally, the cost of cleaning materials and supplies, incl.uding but not limited to toi.1et tissue, paper towels, and soaps, were included within the managemerlI: fee p a i d to Aramark.:' Fj nally, the Management Serviccs Agreement cant-ains a chart of how often certain services are to be performed by service employees, i.ncluding (1) "Nurses/Doctors ' Stations, 'I which were to be sanitized seven days per week and s p o t cleaned Village Care was to provide other suppl.ies, including linens. [* 8] seven d a y s p e r week, and (2) common and public corridors, which were to be sanitized fi.ve d a y s per week and spot cleaned seven days per week. See Management Services Agreement, Exh. EVS, 7l 6. Although the Management Services Agreement clearly spells out the scope of Aramark's duties, the proffered testimony gives a conflicting picture of the nature of what Aramark actually did at the premises, as well as Lhe actual identity of the housekeepers' employer. See DeVito EBT at 15, 21, 23; see a l s o Gabriel. Centeno EBT at 24, 25, 28. Therefore, there remain material questions of f a c t as to whether Ararriark had a duty to plainti.ff to maintain a safe workplace. To defeat. a summary judgment motion, however, plaintiff 's burden goes beyond just showing that there are material questions of f a c t regarding a defendant's duty. Plaintiff must also address a defendant's breach of that duty and proximate cause. Here, plainti.fr not only that maintains that the floor next to the nurse's station habitual1.y was dirty on weekends (see Plaintiff's EB'r at 150-151) and that there was not enough cleaninq staff during those days of the week. This was verified by plaintiff's co-worker, Marcia Thomas (Thomas), who also testified that she told the nurse manager the day bcfore, as well as the morning of plaintiff's alleged accident:, that. the floor in the a r e a of the nurses' station was dirty. ! Page 7 of 9 See Thomas EB'T at 3 7 - [* 9] 41. These facts, in their totality, are suf'fici-ent to raise issues of actual or constructive notice of the alleged defective condition that all-egedly caused plaintiff's accident. Therefore, those portions of V i l - l a g e Care's motion and complaint are denied. As respects Aramark's and Village Care's cross cl-aims for indemnification and contribution, Paragraph 6 (a) of the Management Services Agreement, entitled "Indemnity," provides: "Each ParLy will indemnify and hold the other Party . . . harmless from any third p a r t y liability (including reasonable attorney's fees and court costs) by reason of the negligent acts and omissions of the indemnifying Party . . . ; provided however, that this section will not apply if t.he occurrence f o r which the party seeking indemnification hereunder is caused by such Party's sole negligence. Because there are material questions of fact as to whether or not either Aramark or Village Care was negl-igent in plaintiff's alleyed accident, neither is entitled to either dismissal of Lhc others' cross claims, n o r judgment on it. Finally, as respects the portion of Aramark's cross motion that s e e k s I..o dismiss Village Care's cross claim for breach o ¬ contract for failure to procure insurance, Paragraph 6 (b), entitled "Insurance, of the Management Services Agreement states: "ARAMARK will carry comprehensive qeneral 1iabi.lity Pagc 8 of 9 [* 10] insurance ... w i t h limits ... of T w e n t y F i v e Million Dol.lars . . . combined single 1 i m i . t per occurrence.... Village Care will be j.nc1.uded as an additional insured on the foregoing insurance coverages. Aramark, however, fails to proffer papers to show that i.t procured such insurance as required. Therefore, that portion of Aramark's cross mot.ion that seeks dismissal of the b r e a c h of contract cross claim is denied. Conclusion Accordingly, it is hereby ORDERED that Village Care of New York, Inc.'s motion is denied; and it is further ORDERED that Aramark Facility Services, LLC's cross motion is denied; and it j.s further; and it is further O R D E R E D that this c a s e is in mediation; once m e d i a t i o n is completed, the case is ready for trial. The plaintiff s h a l l serve a copy of this decision/order on the mediator. Dated: New Y o r k , N e w Y o r k F e b r u a r y 2, 2012 ENTER: Page 9 of 9 NEW YORK COlJNTY CLERKS OFFICE

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