Colapietro v Retail Property Trust

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Colapietro v Retail Property Trust 2012 NY Slip Op 31372(U) May 17, 2012 Sup Ct, Suffolk County Docket Number: 08-22143 Judge: Thomas F. Whelan 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 INDEX No. CAL. No. ORDER CO~UPREMECOURTIAS. 08-22143 11-0186701' STATE OF NEW YORK PART 33 - SUFFOLK COUNTY PRESENT: I·Ion THOMAS F. WHELAN Justice of the Supreme Court MOTION DATE 12-12-11 !\DJ. DATE 2-27-12 Mot. Scq. # 00] - MG; CASEDlSP ---------------------------------.-----------------------------X MARJANNE COLAPIETRO, Plaintiff, STEVEN COHN, P.C Attorney for Plaintiff One Old Country Road, Suite 420 Carle Place, New York 11514 - against THE RETAIL PROPERTY TRUST, SIMON PROPERTY GROUP, lNC and CONTROL BUILD~'1G SERVICES, INC, O'CONNOR, O'CONNOR, HINTZ & DEVENEY, LLP Attorney for Defendants One Huntington Quadrangle, Suite 3COI Melville, New York 11747 Defendants. ---------------------------------------------------------------X Upon the following pnpers numbered 11O..1L read on this motion for summary judgment; Notice or Motion! Order to Show Cause and supporting papers ...l.:.-li., Notice of Cross Motion and supporting papers _, Answcnng Affidavits and supporting papers 1(j - 18 ; Replying Aflidavits and supporting papers 19 - 20 ; Other _; (<llld ::lflc, liCJiillg cotllt3c1 ill stlppo,l Mid opposcd to the liiotiolt) it is, ORDERED that this motion by defendants [or an order pursuant to CPLR 3212 granting summary judgment In thclr favor dismissing the complaint is granted. This is an action to rccover damages for injuries allegedly sustained by plaintiff on January 22, 2008 at approximately 3:57 p.m. when she slipped and fell on snow and icc while walking on the sidewalk leading from the employee entrance/exit of Macy's to the parking lot at the Walt Whitman Mall (Mall) located at 160 Walt Whitman Road, Huntington, Ncw York. Defendant The Retail Property Trust (Retail Property Trust) owns and operates the Mall. At the time of the incident, plaintiffwas employed as a Macy's sales associate. Plaintiff claims that defendants were negligent in, among olher things, causing, pelmitting or allowing a dangerous, icy and slippery condition to exist on the premises, failing to properly and adequately warn of the condition, failing to place any signs, cones or barricades. and failing to remedy or remove the condition. In addition, plaintiff claims that defendants had actual and constructive notice of the alleged dangerous condition. [* 2] Colapietro v Rdail Property Index No. 08-22'143 Page No.2 Defendants now move for summary judgment (ilsmissing plallltiff's complaint on the ground that the snow storm that had been in progress while plaintifhvas inside the Mall had ended too short a penod of time prior to plaintiffs Llll for defendants to remedy the alleged hazardous condition created during the storm. Defendants also assert that in any event, defendants Retail Property Trust and SllllOll Property Group, Inc. (Simon Property Group) did not create or have actual or constructive notice of the alleged dangerous condition They lllform that defendants Retail Property Trust and Simon Property Group retained defendant Control Building Services, Inc. (Control Building Services) to perform snow and Ice removal and cleaning services on the sidewalks of the Mall Defendants argue that defendant Control Budding Services ciHInot owe plallltiff a duty of care inasmuch as plaintiffwas not a party to the service agreement and defendant Control Building Services dId not launch a force or instrument ofhann, plainti ff did not rely to her detriment on its continued performance of Its duties, and tl1e serVlce agreement \vas not a comprehensive and exclusive property maintenance contract. Defendants' submissIons m support of the motion include the supplemental summons and amended complamt, defendants' answer to amended complaint, plaintiff's bill or particulars, the deposition transcripts of plamti fr, Deborah .J. Weber on behalf of defendant Simon Property Group, and Jose Contrcras on behalf of defendant Control Building Serviccs, the affidavit of Deborah J. Weber, and the service agreement dated Deccmber 31,2004 between Retail Property Trust and Control Building Services. 1t IS well settled that the party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offenng sufficient evidence to demonstrate the absence of any matenal issues of fact (see Alvarez l' Prospect Ho;.,p., 68 NY2d 320, 508 NYS2d 923 [1986]; Zuckerman v City oflv'ew York, 49 NY2d 557, 427 NYS2d 595 [1980]). The failure to rnake such a prima bcie showing requires the demal of the motion regardless of the sufficiency of tile opposing papers (see Willegrad v New York Vull'. Met!. 01'.,64 NY2d 851, 487 NYS2d 316 [1985]). "Once this showing has bcen made, however, the burden shifts to the party 0ppOSll1gthe motion for summary Judgment to producc evidentiary proofin admlssible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Pro;.,pect Hosp., supra at 324, citing to Zuckerman v City o.fNelV York, SlIpra at 562). As the proponents of the motion for summary judgment, the owner defendant Retall Propcrty Trust and the property manager defendant Simon Property Group have the burden of establishing, prima facie, that they neither created the snow and ice condition nor had actual or constructive notice of the condition (see Smith )' Christ's First Presbyt. Church of HemjJstead, 93 AD3d 839, 941 NYS2d 211 [2d Dept 2012]; Meyers)' Big SLy Towers, Inc .. 85 AD3d 877, 925 NYS2d 607 [2d Dept 2011]). This burden may be sustained by presenting evidence that thcre was a storm in progress when the llljured plaintiff allegcdly slipped and fell (see ic/.). Undcr the "storm In progress" rule, an owner or party in control of real property will not be held 1Jable for accidents occurring on the propcrty as a result of the accumulation of5now and/or ice until a reasonable penod oftimc has passed, fOJlowlllg the cessatIon of the storm, withlll which the owner or party ill control has the opportunity to amcliorate the hazards caused by the storm (see Sfakianos v Big Sb:: Towers, 1uc., 46 AD3d 665, 846 NYS2d 584 ['2d Oep! 2007]; Russo v 40 Garden St. Partners, 6 AD3d 420, 775 NYS2d 327 [lei Dept 2(]()4]). There is no duty to remove snow and ice while a storm is in progress (Grall I' Taxter Park Assocs .. 283 AD2ei 551, 724 NYS2d 497 [2d Dept 2001], appea! dCllied 96 N'y'2d 721, 733 NYS2d 373 [* 3] Colapielro v Retail Property Index No. 08-22143 Page No.3 l2001]). In addition. a lull in the storm does not imposc a duty on the owner or party in control of real property to remove the accumulation before the stann ceases in its cntirety (see Dowden l' Long Is. R. R., 305 AD2d 631,759 NYS2d 544 [2d Dept 2003J; see a/so Sanders v IVai-Mart Stores, Inc., 9 AD3d 595,780 NYS2d 417 [3d Dcpt 2004]). Also, there is no duty to warn of icy conditions dUring a storm in progress (see IVlteelu v GrllJl(le'vie Sr. Living COfl/munity, 31 AD3d 992, 993, 819 NYS2d 188 fJd Dept 2006]). On a motion for summary judgment, the question of whether a reasonable time has elapsed from the end of a snow stom1 may be decided as a matter of law by the court, based upon the circumstances of the case (see Valentiue v City of Nell' York, 57 NY2d 932, 457 NYS2d 240 [J 982]; L(lI/oS v Croll"eim, 77 AD3d 63L 909 NYS2d JOI [2d Dept 2010J). A two-hour 1J1tcrvalbetween the cessation of the snow storm and the occurrence of the aCCldent has been determined 110tto be a reasonable period of time to correct the hazard caused by the storm (see L(tftos l' Croll"eim, sl/fJm). A contractor or subcontractor's limited contractual undertakmg to provide snow removal services gencrally does not give rise to a duty of care to persons not a party to the contract, absent evidence that the contractor or subcontractor assumed a comprehensive maintenance obligation entirely displacing the other pany's duty to maintain the premises safely, or created or exacerbated a dangerous condition or launched a force or instrument ofham1, or that the plainti ff detrimentally relied on the contractor's continued performance of its obligation (see Espinall' Melville Snow Comrs., 98 NY2d 136, 746 NYS2d 120 [2002]; Georgotlls l' Laro Jtlailltenaltce CO/p., 55 AD3d 666, 865 NYS2d 651 [2d Dept 2008J, I"denied 12 NY3d 703, 876 NYS2d 704 [2009]). PlaintIff testified at her deposition on February 5, 2010 that she arrived at work on the day of her accident at 9:20 a.l11" that her n0l111alwork hams for that day were 9:30 a.m. to 3:00 p.I11.,and that she was wearing a regular shoe on her right foot and a blue open-toed boot with a rubber sale undemeath on her left foot, following surgery 10 correct a hamme110e and bunion lJ1August 2007. In addition, she testified that during her ride to work the weather was clear, with no precipitation, and she could not recall when there had previously been any precipitation. Plaintiff recalled that the parking lot was clear, the sidewalks were not wet, and that she walked without event from her car to the employee's entrance of Macy's. She stilted that while looking out or a window at Macy's between 12 p.m. and 1 p.l11.she saw blg snowflakes and observcd that the snow was sticking to the ground, and tbat at approximately 2 p.lll. when looking out of a window at Macy's she observcd Illen spreading salt all the sidewalk of the second Ooor parklllg lot, and when asked whether it was still snowing at 2 p.lll. she responded ,,[ think so." Plaintiff explained that her accident occurred when she left Macy's at almost 3: 15 p.m. after clocking out at 3:04 p.m., that she and another female employee walked out together, that it was no longer snowll1g, that she did not know \vhen it had stopped snowing, and that there was "a thin coating" or snow all thc sidewalk. According to plaintiff, she fell at a POint halfway between the employee entrance and the parking lot when her right foot went out, she went sideways, and her left knce hit the concrete. She further stated that it was snow with ice undcmeath that caused her to fall based all her observation after her fall ora wct, clear mound of ice, approximately one llleh thick with an area of approximately six lllehcs, wherc the snow had been wiped away by her foot. Plainti ff added that she observed several ice patches in thc area between the employce entrance and the parking lot, that a Macy's sccurity guard was a witness to hcr fall, and that mall security personnel took photographs of the seem: and then put down Ice melt. [* 4] Colapictro v Rewil PropcI1y Index No. OS-22143 Page NO.4 Deborah J. Weber testified at her deposition on March 5, 2010 that she was employed by Sllllon Property Group as the Mall Manager on the date of tile incident and that part ofhcr duties involve maintenance of the physical propcrty, which Jl1cluues landscaping and snow removal. In adchtion, shc testified that an oulsidc contractor, Control Building Services, performed maintenance for the Mall. Ms. Weber also testified that mall1tenance of the sidcwalk area abutting thc Mall at the exterior of Macy's. a tenant of the Mall, was the responsibility of Simon Property Group, and included snow and Ice removal Accordmg to Ms. Weber there were shovels and spreaders available at the Mall. She stated that every employec of the contractor and Simon Property Group was responsible for "cal1ing ouC' any perceived dangcrous condition, but that thcre would be no documentation, instead someone would be sent oul to remedy the condition. Ms. Webcr also stated that she was aware of prior complaillts of snow or ice accumulation on the Mall sidewalks but could not remember specifically if she received any of those complaints betwcen January I and January 22,2008. She further stated that a complaiut of snow and Ice conditions would not generate a document but a slip and fall incident from snow and ice would generate an incident report. Ms. Weber explained that defendant Simon Propeny Group did not have its own incident report and that an Incident report with Simon Propel1y Group's name listed on top would be completed and maintained by the Mall's security contractor in their office at the MalL She did not know ifshe was present on the prcmises on the date of the incident. By affidavit dated November 8, 201 1, Ms. Weber adds that from October 2007 through January 22,2008 shc never personally received any complaints concerning the condition ofthc sidewalk and/or a snow or ice condition locatcd on the sidewalk, and was never notified of any prior accidents involving snow or ice upon the sidewalk wherc plaintiffs accident occurred. In addition, Ms. Weber avers that a review of Mall records reveals that from October 2007 through Janu<.\ry22, 2008 the Mall never received any complaints regarding the condition of the sidewalk anelloI'a snow or ICC condition located thereon, and was not advised of any prior accidents involving snow or ice on the Sidewalk where plamtlffs accident occurred. She also slates that the attached service ilgrecmcnt is a true and accurate copy that was in full Coreeand effect on the date of the subject incident. At his deposition on July 27, 2011, Jose Contreras testified that on the dale orthe subJcct Incident he was cmploycd by Control BUIlding Services as a supervisor or its housekccping staff comprised of 12 to 13 pcople. In addition, he testified that Control Building Scrvices was responsible for clearing the snow and ice from the sidewalk surrounding the Mnl1undcr direction from Ms. Weber's assistant, that there were tcn temporary Control Building Services stnrrmembers, separate from the housekeeping stafr, employed soleI).' for snow removal. and that said employees would be called in by Ihe director of tile Mall. Mr. Contreras stated tllat he was responsible for walking the grounds 10 detCl"llllnewhere snow or ice removal was required. According to Mr. Contreras, there \Vas a shop on the first Ooor where shovels, five or six snow blowers, salt, and 10 or 15 spreuders would be storcd_ lie explained that the housekeeping staff would be responsible for spreading salt at the five main entrances to the Mall when SllOW began to fall prior to calling in the extra staff to clear the main and employee entrances. Mr. Contreras infolllled that two inches of snow was required prior to calling in the extra staff for snow removal. Mr. Contreras also stated that snow and ice removal by his staff was not documented, that his work hours were 7 a.m. to 3:30 p.m., and that his slaffhad two shifts, one group worked from 7 a.m. lo 3:30 p.m. and another group worked from 3:30 p.m. to 12:00 a.111.Mr. Conircras infomled thal after IllS shift ended, no one else assumed his post as supervisor. He did not re111cmberif [* 5] Colapietro v Retail Propeny Index No. 08-22143 Page No.5 he was working on January 22. 2008 or ifhc was ever advised that a woman slipped and fell 011 snow or Ice on January 22, 2008 or any complamts of prior slip and fall incidents on SIlOW or icc ollthc sidewalk arca outside of the Mall. Puragraph 15 of Exhibit A of the service agrccmcnt relates to snow rcmovul and indicates that defendant Control Budding Services "will provide light snow and ice removal in such areas as entrances and sldcwalks as within the budget. This shall be defined as removal by method ofbrooDl, shovel, and/or Ice melt" and that "[i]n some instances." it "will be responsible to utilize existing eqll1pment for the purpose of drive lane. parking lot and main entrance snow removal. as well as, the spreading of Ice melt in the above-mentioned areas." Here, defendants did not submit any climatological records 111upport of their motion (see CPLR s 4528). Howevcr, accepting as true plaintiff's deposition testimony that she believed that it was still snowing at 2 p.m. but that the snow had ended by 3: 15 p.m. when she len. Macy's and that her accident occurred at 3:57 p.m. as alleged in her bill of particulars, defendants established their prima facie showing of entitlemcnt to judb'lncnt as a matter of law (see LalJos v CrolJ!Jeim, supra; SjakialJos v Big SLr Towers, Inc., supra; Delll/asi v Radbro Realty, 261 AD2d 354. 689 NYS2d 207 [2d Dep! 1999]). Defendants demonstrated that even if the snow ston11had endcd shortly aner 2 p_m., they would have had at most two hours to remedy the snow and ice condition prior to plaintiff's fall at 3:57 p.m. thereby establishing that, regardless of the notice issue, defendants did not have sufficient time from the cessation of the storm to remedy the condition (see L{mos II Crol/!Jeim, supra; Edwards v DeMatteis Corp., 306 AD2d 309, 760 NYS2d 658 [2d Dcpt 2003J; see also Coyne v Talleyrwul Partllers, L.P . ¢ 22 AD3d 627, 802 NYS2d 513 [2d Dept 2005], Iv den;ed 6 NY3d 705, 812 NYS2d 34 [2006]). The burden then shIned to plaintiff to raise a lriable issue of fact as to whether the precipitation from the stoml in progress was not the cause of her accident (see Meyers v Big Sir Towers, II/C., supra; Aiel'S l' La Bonlle Vie Org., 54 AD3d 698, 863 NYS2d 750 [2d Dcpt 2008J; DeVito I' Harrisolll/(JlIse Assocs., 41 AD3d 420, 837 NYS2d 726 [2d Dcpt 2007]). Plainti ff must raisc a triable issue of l·~lct s to a whethcr thc accident was caused by a slippery condition at the location where she fell which existed prior to the stann, rather than precipitation from the stoml in progress, and that defendants had actual or constructive notIce of the preexisting condition (see !J.1eyersv Big Sb: Towers, IIlC., supra). Moreover, defcndant Control Building Services demonstrated its prima facie entitlcmcnt to judgment as a matter of law merely by submitting proof that plaintiff was not a party to the service agreemcnt and that it therefore owed 110 duty of care to plaintifT(sce I/enriquez I'll1serra Supermarkets, IIlC., 89 AD3d 899. 933 NYS2d 304 [2d Oept 20 I I]; Fm"fer I' Herbert Slepoy COI1J.,7() AD3d 210, 90S NYS2d 226 [2d Dcpt 20ID]). Once defendant Control Building Services made its prima facie showing, the burden shiftcd to plaintiff to come forward with evidence sufficicnt to r31se a triable issue of fact as to the applicabIlity of one or morc of the three exceptions to the general rule (see id.). In opposition to the motion, plaintiff contends that defendants are unable to stilte the last timc that they inspected the accident location prior to the cessation oCthe snow fall and thus cannot prove that they laCKedsufficient time prior to the cessation of the storm to remcdy the dangerous condition or that they laCKednotice of the condition. In addition. she contends that the existence of an approximately one [* 6] Colapiet'ro v Rctail Property lndcx No. 08-22143 Page No.6 inch thick patch of ice is evidence that it was at the subject location for a substantial pcriod of time prior to the accidcnt such that it should have been discovered and treated with salt. Plaintiff also argues that defendants' reliance on plaintiffs unccrtain response [0 the question of whether it was snowing at 2 p.lll. rathcr than probing further and submitting an affidavit of an cxpcrt is insufficicnt to meet their burdcn that a reasonable time had not elapsed from the end of the snow stoml. She further contends that the servicc agreclllcnt bctween defcndants Retail Property Trust and COlllrol Budding Serviccs is a comprehensivc and exclusive maintenance agreemcnt undcr whose terms defendant Control Building Services IS liable. In SUpp0l1 of her opposition to ihe motion, plaintiff submits a copy of the accident report generated ancr her fall. to the motion (see Smith v Christ's First Preshyt. Clmrch of lIempstead, supra; ftle)'ers v Big Six Towers, iIlC., supra). She failed to raise a triable issue of fact as to whether she slIpped on snow-covered Ice from a previous stoml and whcther defcndanls had actual or constmctive notice of the preexisting condition (see Smith v Christ's First Presbyt. Church of Hempstemf, supra; Zimmer v Kimco Realty Corp., 6 AD3d 528, 774 NYS2d 389 [2d Dept 2004]; Dowden v Long fs. R. R., supra). In addition, plaintirrs claim that the snow-covered icc patch existed ror a sufficicntly long lime, as evidenced by its thickness and sizc, to have provided constructive notice and a sufficient amount oftimc to remedy the condition is based upon mere speculation (see Zimmer v Kimco Reltlty Corp., supra; Bertmon v Board of AlgI'S. of Olllui Ct. COlldomiltiulIll, 233 AD2d 283, 649 NYS2d 799 [ld Oept 1996]). Moreover, plaintiff did not submit any evidence to establish that defendants had an adequate period oftil11e following the cessation of the storm to remedy the dangerous condition (see RWiSOv 40 Gardeu St. Partners, supra). Defendants satisfied theIr burden tinder the "5110\\/ in progress" rule with eVIdence of plaintiffs own ohservations, her affirmative rcsponse 01'''1 think so" to the deposition qucry of whether it was still snowing at 2 p.m., without the necessity of also establishing lack of noticc (see S/akillllos v Big Sb: Towers, Illc . ¢ supra; Edwards v DeMatteis COI]).,sU[Jm; DeMasi l' Radbro Realty, 261 AD2d 354, 689 NYS2d 207 [ld Dept 1999]). Furthermore, even lfthe service agreement between defendants Retail Property Trust and Control Building Services was an exclusivc and comprehcnsive maintenance agrecmcnl that enUrely displaced the owner's or property manager's duty to maintain the premises safely, defendant Control Building Services successfully established its entitlcment to Judgment as a mutter of law under the "slorm in progress" rule (see Coyne v Tal/eyr£/lul Partners, L.P., sUj)m). Plaintiff failed to raise a triable issue of fact in opposition Accordingly, Dated: the ll1stant motion is grantcd and the complaint is dismissed in its cntil"cty.

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