Gabriel v Baldwin Props. Mgt., LLC

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Gabriel v Baldwin Props. Mgt., LLC 2012 NY Slip Op 31386(U) May 7, 2012 Supreme Court, Nassau County Docket Number: 17467/09 Judge: Anthony L. Parga 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 - NEW YORK STATE-NASSAU COUNTY PRESENT: HON. ANTHONY L. PARGA JUSTICE PART 6 EDWARD GABRIEL Plaintiff -against- INDE)( NO. 17467/09 MOTION DATE: 03/13/12 SEQUENCE NO. 003 BALDWIN PROPERTIES MANAGEMENT LLC TD BANK , N. , and SIPALA LANDSCAPE SERVICES , INC. Defendants. TD BANK , N. Third Part Plaintiff -against- SIPALA LANDSCAPE SERVICES , INC. Third Part Defendant. Notice of Motion, Memorandum of Law, Affs & Exs................................................ Affirmation in Oppositio D.... ..... ... ....... .... .... ..... Upon the foregoing papers , the motion by defendants , Baldwin Properties Management LLC and TD Ban , N. , for an order granting them summar judgment , pursuant to CPLR 93212 , is denied to the extent directed below, except that defendant/third part plaintiffTD Ban , N. A. is granted conditional summar judgment over and against third party defendant Sipala Landscape Services , Inc. , on contractual indemnity grounds only. This is an action for personal injuries allegedly sustained by plaintiff Edward Gabriel on January 11 2009 at the premises owned by defendant Baldwin Properties Management , LLC [* 2] (hereinafter " Baldwin ) and leased to defendant TD Bank , N. A. (hereinafter " TD Ban" ), located at 3222 Sunise Highway, Wantagh , New York (hereinafter " the premises ). Plaintiff alleges that he was caused to suffer personal injuries when he slipped and fell on ice while walking on the walkway of said premises. In his verified bil of pariculars , plaintiff alleges that defendants Baldwin and TD Ban were negligent in the ownership, leasing, occupancy, maintenance and repair of the premises and that the defendants were negligent in creating and/or having notice of a dangerous snow and ice condition at the premises. Defendants Baldwin and TD Bank move for sumary judgment on the grounds that there is no evidence of negligence on the par of said defendants and that they may not be held liable for any negligence on the par ofthe independent Landscaping Services , Inc. (hereinafter " Sipala snow removal contractor , defendant Sipala ). In the alternative , defendants Baldwin and TD Ban request an order granting them conditional summar judgment on contractual and/or common law indemnity grounds based upon the terms of the contract that was in effect at the time of the accident between TD Ban and Sipala , as well as Sipala s performance of snow removal services before the plaintiff s accident. In support of their motion , movants submit the pleadings; plaintiffs verified bil of pariculars; the deposition transcript of plaintiff; the deposition transcript of defendant TD Ban' s witness , Vice President , Regional Facilities Manager of TD Ban , Andres Matos; the deposition transcript of Mike Sipala, president of defendant Sipala; a copy of the lease agreement that was in effect between Baldwin and TD Ban (the Cour notes that the lease was originally between Baldwin and Commerce Ban , but it is undisputed that TD Ban took over Commerce Ban and that the paries adhered to the terms of the original lease agreement between Baldwin and Commerce Ban); a copy of the snow removal contract in effect between TD Ban and Sipala , together with the letter extending the contract through April 2009; and copies of Sipala snow removal invoices for several days prior to the date of plaintiffs accident. Movants contend that pursuant to the express terms of the lease agreement between Baldwin and TD Ban , TD Ban was responsible for maintaining the premises and for snow and ice removal. Further , Mr. Andres Matos , Vice President and Regional Facilities Director ofTD Ban testified that TD Ban , and not Baldwin , was responsible for removing snow and ice from [* 3] the premises on the date of the accident. The Cour notes that , pursuant to the terms of the lease agreement , TD Ban has previously agreed to defend and indemnify Baldwin in this action. Mr. Matos furher testified that a written contract for snow removal was in effect on the date of the accident between TD Ban and Sipala. Pursuant to the terms of said contract , Sipala agreed to supply all labor, equipment and tools to properly perform its duties under the contract, and in the event of snow or freezing rain , Sipala was obligated to , at a minimum , salt and sand the TD Ban properties covered by the contract both before and after precipitation. The contract obligated Sipala to "keep all drives , parking areas , sidewalks , fire lanes , fire escapes and exit/entrance ways passable 24 hours a day, 7 days a week." Mike Sipala, president of defendant Sipala, also testified that there was a snow removal contract in effect at the time of the accident and that in the event of a snow fall of less than three inches , Sipala would remove snow at the premises with a shovel , and , in the event of a snow event greater than three inches , Sipala would plow the snow at the premises. Mr. Sipala testified that no matter the size of the snow event , Sipala would go to the premises and pre- treat the premises with salt or sand , even when a freezing rain was predicted during the winter months. Movants contend that the snow removal contract specifically obligated Sipala to indemnify and hold harless TD Ban for all accidents arising out of any breach or alleged breach of Sipala s duties under the contract or in the event that Sipala was negligent for any services performed for TD Ban by Sipala. Movants further contend that it is undisputed that defendant Sipala performed snow removal services pursuant to the contract on the day before the accident , as well as on the morning ofthe accident. Mr. Sipala testified that his records indicated that Sipala went to the premises in question and removed snow and ice from the premises and salted and sanded the premises on the day before the plaintiff s accident. He also testified that Sipala came to the premises on the morning of the accident and salted and sanded the premises. Mr. Sipala testifeid that a half inch of snow fell in Wantagh on the date of the accident , so his company went to the premises before the plaintiffs accident to apply salt and sand. Mr. Sipala and Mr. Matos both testified that the decision as to whether and when Sipala would go to the premises to remove snow and ice and salt or sand would be left entirely to Sipala. Mr. Sipala and Mr. Matos also testified that Sipala would leave a bag of salt or sand at the branch in question for TD Bank [* 4] employees to use .at their discretion , should the need arise , however , employees would only use same when the ban was open. At the time of plaintiff s accident , around 11 :00 a. m. on a Sunday, the ban was not yet opened for business. Plaintiff testified that the accident occured as he stepped onto the brick pavers that lined the entranceway to the front of the bank. He observed a sheet of clear ice on the ground before he stepped onto the brick pavers. He took one step onto the pavers , knowing that the ice was there , and slipped and fell. Plaintifftestified that it was below freezing at the time of the accident and that it had been "misting " the entire morning and was " misting " at the time of the accident. He also testified that the ban was not open at the time of his accident. Plaintiff never complained to anyone at the ban about an ice condition on the premises , nor was he aware of any prior accidents at that location. Similarly, neither Mr. Matos nor Mr. Sipala were aware of any complaints regarding ice at the entranceway of the premises or of any prior accidents at that location. To begin , defendants, Baldwin and TD Bank contend that Baldwin is an out-of-possession landlord entitled to sumar judgment as the premises was leased in its entirety to TD Bank on the date of the accident and as the lease agreement in effect on the date of the accident places responsibility for maintenance of the premises , including snow removal , on TD Ban. Mr. Matos testified that Baldwin had no maintenance responsibilities for the exterior portion of the premises and that the lease agreement placed the maintenance and snow removal responsibilities on TD Ban. The evidence submitted demonstrates that TD Ban was the tenant at the premises at issue , that it was responsible for snow and ice removal , and that Baldwin was an out-of- possession landlord without control of the premises or a contractual obligation to perform maintenance thereto. In opposition to this portion of defendants ' motion , plaintiff contends that the retention of control of the premises or of the right to repair or maintain the propert may make the oWner liable for defects. Plaintiff contends that because the lease permits Baldwin the right to enter the premises for puroses or examining the premises , and as the lease prohibits the tenant from making any installations , alterations , or additions without obtaining written consent of Baldwin Baldwin has retained control of the premises , making it liable herein. Additionally, plaintiff [* 5] contends that because the premises at issue are open to the public , the owner Baldwin has a nondelegable duty to provide the public with a reasonably safe premises and a safe means of ingress or egress , which may not be delegated to an independent contractor like Sipala. Movants next contend that defendant TD Bank is entitled to sumar judgment as there is no evidence that it was negligent; as it was precipitating at the time of plaintiffs accident; and as TD Ban' s independent contractor Sipala performed snow removal services the day before the accident and on the morning of the accident. Movants contend that TD Bank was not open at the time of the accident , that TD Bank had no notice of the condition , and that the only snow removal and salting and sanding that was performed at the premises was performed by defendant Sipala. As TD Ban employees would only use the bag of salt or sand left by Sipala when the ban was open , and as it was not yet open on the morning of the accident, there is no evidence that TD Ban caused , created , or worsened the condition at issue herein. Movants further contend that Sipala , by its own admission through its president , Mike Sipala , was solely responsible for snow removal at the premises at issue. Further, the deposition testimony of the paries indicates that the decision as to when and whether Sipala would go to the premises to remove snow and ice and place salt and sand was left entirely to Sipala, and that Sipala was responsible for cleaning snow and ice from all of the sidewalks and entrance ways at the premises. In addition , Sipala performed snow removal services , pursuant to the contract , on the day before the accident and on the morning of the accident , several hours prior to its occurence. Finally, movants contend that the plaintiffs testimony indicates that it was " misting" at the time of the accident and had been all morning. As such, defendants contend that the plaintiff s accident occured during an ongoing precipitation event and therefore they were not obligated to clear snow and ice while the misting weather event was ongoing. In opposition to said arguments , plaintiff contends that there are questions of fact as to whether the dangerous condition which caused plaintiff s injuries was caused by the defendants. Plaintiff contends that while moving defendants contend that Sipala performed snow and ice removal to the premises , they have failed to establish that "the dangerous condition was not caused or created by the maner in which the work was performed. " Plaintiff further contends [* 6] that it is not required to prove notice of the unsafe condition when the condition was created by the defendants or their agents or employees , and that the defendants had a nondelegable duty to provide the public with a reasonably safe premises which could not be delegated to Sipala. Generally, an out of possession landlord is not liable for injuries occuring on the premises unless it has retained control of the premises or is contractually obligated to perform maintenance and repairs. 873 N. Y.S.2d (Brewster v. Five Towns Health Care Realty Corp. 59 AD. 3d 483 199 (2d Dept. 2009)). Reservation of a right to enter the premises for the puroses of inspection and repair may constitute sufficient retention of control to impose liability for the dangerous condition , but only where the condition violates a specific statutory provision. (Brewster v. Five Towns Health Care Realty Corp. 59 AD.3d 483 873 N. Y.S. 2d 2009); Conte v. Frelen Assoc. , LLC 51 AD. 3d 620 858 N. Connell v. L.B. Realty Co. 50 A. 3d 752 856 N. Y.S.2d 199 (2d Dept. 2d 258 (2d Dept. 2008); 165 James Holding Corp. 240 AD.2d 527 658 N. Y.S.2d 684 (2d Dept. 1997); (2d Dept. 2008); Blackwell v. See also, Angwin v. FRF Ltd 285 AD.2d 570 , 728 N. Y.S.2d 90 (2d Dept. 2001)). Furer , a propert owner or possessor may not be held liable for an alleged ice and/or snow condition unless the plaintiff proves that the owner either created the dangerous condition which is alleged to have caused the accident or had notice of the condition. Y.S.2d 243 (2d Dept. 2007); Dept. 2002); (Robinson v. Trade Link America 39 A. D.3d 616 833 Voss v. D&C Parking, 299 AD. 2d 346 , 749 N. Y.S. 2d 76 (2d Javurek v. Gardiner 287 AD.2d 544 , 731 N. Y.S.2d 475 (2d Dept. 2001)). Accordingly, the moving defendants have made a prima facie showing of entitlement to summar judgment on liability grounds. There are questions of fact , however , regarding whether the snow removal company, Sipala, was or was not negligent in its performance or nonperformance of snow and ice removal services at the TD Ban premises which prevent the granting of sumar judgment to the movants upon liabilty grounds. No expert affidavit has been provided with respect to same , and there has been insuffcient evidence set forth to establish Sipala s negligence , or conversely, its freedom from negligence , herein. (See, i. , Fung v. Japan Airlines Co. , Ltd. 9 N. Y.3d 351 850 Y.S.2d 359 (2007)(merely plowing snow and salting after snow falls , is insuffcient for a factual finding that the work either created or exacerbated a dangerous condition); Tamhane v. ," ); [* 7] Citbank, NA. 61 AD.3d 571 , 877 N. Y.S.2d 78 (1 sl Dept. 2009); Contrs. 98 N. Y.2d 136 , Espinal v. Melvile Snow 2d 485 (2002)). While the general rule is that a party who 773 N. retains an independent contractor is not liable for the negligence of the independent contractor where it has no right to supervise or control the work , there is a nondelegable duty exception to said rule where the par (Backiel v. Citbank, NA., is under a duty to keep the premises safe. 299 AD. 2d 504 , 751 N. Y.S.2d 492 (2d Dept. 2002)). Owners of real property onto which members of the public are invited have a nondelegable duty to provide the public with reasonably safe premises and a safe means of ingress and egress. 3d 1007 934 N. Y.S.2d 202 (2d Dept. 2011); 751 N. Y.S.2d 492 (2d Dept. 2002); Dept. 2001); (Sarisohn v. Thomassen 1989); See also, 341 Commack Road, Inc. , 89 Backielv. Citbank , 299 AD. 2d 504 Arabian v. Benenson 284 AD. 2d 422 , 726 N. Y.S. 2d 447 (2d v. 152 AD.2d 421 549 N. K Diner, Inc. Gallagher v. St. Raymond' s R. 2d 416 (2d Dept. C. Church 21 N. Y.2d 554 236 N. E.2d 632 (1968)). As such , an owner may be held vicariously liable for the negligence of its independent contractor if such negligence violated the owner s nondelegable duty to provide safe ingress and egress. (Olivieri v. GM Realty Co. LLC , 37 A.D.3d 569 830 N. S.2d 284 (2d Dept. 2007); Arabian v. Benenson 284 AD.2d 422 , 726 N. Y.S.2d 447 (2d Dept. 2001); v. Schwager Assoc. 249 AD. 2d 531 see also, Richardson 672 N. Y.S.2d 114 (2d Dept. 1998)(holding that the owner subleased the premises to the tenant with knowledge that members of the public would be invited onto the premises and , therefore , the owner had a nondelegable duty to provide the public with a See also, reasonably safe premises and a safe means of ingress and egress); Equitable Lif Assur. Socy. of us. 79 N. Y.2d 663 Rosenberg v. 595 N. E.2d 840 (1992)(where the employer of an independent contractor has a nondelegable duty to keep the premises safe the employer canot insulate itself from liability by claiming that it was not n gligent: the employer is vicariously liable for the fault of the independent contractor because a legal duty is imposed on it which canot be delegated" See also, Podlaski v. Long Island Paneling Ctr. of Center each Inc. 58 AD. 3d 825 873 N. 2d 109 (2d Dept. 2009)(even if the independent contractor created the hazardous condition that resulted in injury to the plaintiff, the owner of a propert onto which the public is invited may not avoid liability to the plaintiff for its alleged failure to maintain the walkway in a safe condition). [* 8] As members of the public were invited onto the premises at issue herein , Baldwin had a nondelegable duty to keep the premises reasonably safe and may be vicariously liable for the negligence of defendant Sipala. As there are questions of fact as to whether the alleged ice condition was caused , created , or worsened by the actions or inactions of the snow removal company, Sipala, there are , consequently, questions of fact regarding Baldwin s vicarious liability as the owner ofthe premises. Accordingly, defendant Baldwin s motion for summar judgment on liability grounds is hereby denied. In addition , with respect to TD Bank' s application for summar judgment on liability grounds , the lease at issue herein between Baldwin and TD Ban obligated defendant TD Ban to maintain the premises. Regardless of same , a tenant has a common law duty to remove dangerous or defective conditions from the premises it occupies , regardless of whether the lease obligates the landlord to maintain the premises. AD.3d 1007 934 N. Y.S. 2d 202 (2d Dept. 2011), Commack Road, Inc. , 89 341 (Sarisohn v. 303 AD.2d Cohen v. Central Parking Sys., 353 , 756 N. Y.S. 2d 266 (2d Dept. 2003)(the fact that the landlord was contractually responsible for snow and ice removal does not relieve the tenant from liability for the alleged dangerous McNelis v. Doubleday Sports 191 A. D.2d condition on the premises); Reimo/d v. Walden Terrace, Inc. 85 AD. 3d (2d Dept. 1993); 2011)). Under the rubric of " nondelegable duty, " a pary who 1144 , 619 595 N. 926 N. S.2d 118 2d 153 (2d Dept. an independent contractor retains will be found vicariously liable for the negligence of the contractor where the employer is under a (Paul Brothers v. New York State Elec. duty to keep the premises safe. 251 898 N. E.2d 539 (2008); 595 N. E.2d 840 (1992); Dept. 2002); Rosenberg v. Equitable Life Assur. Socy. Stockdale v. City of New York 294 A. Gas Corp. 11 N. Y.3d of 2d 195 , Olivieri v. GM Realty Co. , LLC 37 AD.3d 569 830 N. us. , 79 N. 744 N. 2d 663 2d 5 (2d 2d 284 (2d Dept. 2007)). " In such instances , the employer canot insulate itself from liability by claiming that it was not negligent: the employer is vicariously liable for the fault of the independent contractor because a legal duty is imposed on it which canot Assur. Socy. of us. be delegated. 79 N. Y.2d 663 595 N. E.2d 840 (1992)). Furher, the snow removal contract between TD Ban and Sipala herein is not the tye propert maintenance (Rosenberg v. Equitable Life of comprehensive and exclusive obligation that obligated Sipala to maintain the entire premises , and as [* 9] such , it did not displace the duty of TD Bank , as tenant in possession , to duty to keep the premises in a safe condition. (See, Tamhane v. Citbank , 61 AD.3d 571 877 N. Y.S.2d 78 (Ist Dept. 2009); Castro v. Maple Run Condominium Assoc. 41 A. D.3d 412 837 N. Y.S.2d 729 (2d Dept. 2007); Linarello v. Colin Service Systems, Inc. 31 AD. 3d 396 817 N. Y.S.2d 660 (2d Dept. 2006)). Accordingly, defendant TD Bank' s motion for summar judgment on liabilty grounds is denied. Furher , the moving defendants contend that they are entitled to sumar judgment based upon plaintiffs testimony that it was " misting " at the time of the accident. Moving defendants contend that since it was misting, they had no obligation to clear snow or ice during the ongoing precipitation event, but would have had a reasonable amount of time from the cessation of such event in which to remove the fallen precipitation, and as such , they canot be held liable for the plaintiffs accident or injuries. Generally, a defendant has no duty to remove snow and ice during an ongoing storm , however , once the defendant undertakes snow removal efforts , it must do so in a reasonable maner and may be held liable for creating or exacerbating a dangerous (Salvanti v. Sunset Indus. ParkAssoc. 27 AD. 3d 546 813 N. Y.S.2d 110 (2d Dept. condition. 2006); Rugova v. 2199 Holland Ave. Apt. Corp. 272 AD. 2d 261 , 708 N. S.2d 390 (1st Dept. 2000)). As there is a question of fact as to whether the snow removal company s efforts on the morning of the accident were performed during the " misting " weather event , as there is a question of fact as to whether those efforts caused or exacerbated the icy condition at issue herein , and as TD Ban and Baldwin may be held vicariously liable for the negligence of Sipala sumar judgment on said ground is also denied. Defendant TD Ban next contends that it is entitled to conditional summar judgment on contractual indemnity grounds over and against defendant Sipala. Defendant TD Ban contends that its contract with Sipala contains an express indemnity against loss. Pursuant to the snow removal contract, Sipala , was expressly obligated to indemnify and hold harmless TD Ban for all accidents arising out of any breach or alleged breach of Sipala s obligations under the contract , for any negligent performance of Sipala ' s obligations under the contract , for any act or omission of Sipala with respect to services or the performance of Sipala ' s obligations under the agreement , and for any services performed for TD Ban by Sipala. In addition , the contract [* 10] required Sipala to procure insurance naming TD Ban as an additional insured. TD Ban contends that it is undisputed that Sipala performed snow removal services at the location of the accident on the day of the accident and the day before the accident. Additionally, the evidence presented demonstrates that TD Ban had no notice of the alleged condition at issue , that it did not cause , create or exacerbate the icy condition , and that it did not supervise or control the work performed by Sipala with respect to snow and ice removal. As such , TD Ban has demonstrated that it was free from any negligence and , consequently, may be liable solely by virtue of vicarious liabilty, despite its duty to the plaintiff. To obtain conditional relief on a claim for contractual indemnification , the one seeking indemnity need only establish that it was free from any (Jamindar v. negligence and may be held liable solely by virtue of statutory or vicarious liability. Uniondale Union Free School Dist. 90 AD. 3d 612 934 N. Y.S. 2d 437 (2d Dept. 2011); Cava Constr. Co., Inc. v. Gealtec Remodeling Corp. 58 AD. 3d 660 871 N. Y.S. 2d 654 (2d Dept. 2009)). Conditional judgment may be entered when indemnification is based upon an express (Reisman v. Bay Shore Union Free School Dist. 74 A.D.3d contract to indemnify against loss. 772 902 N. Y.S.2d 167 (2d Dept. 2010)). Indemnification agreements are agreement between the paries connotes an unmistakable intention to indemnify which can be clearly implied from the language and purose of the entire agreement. Y.2d 153 397 N. Y.S. 2d 602 (1977); 556 N. Y.S.2d 991 (1990); Dept. 2008); Margolin v. (Hogeland v. Sibley, 42 Brown v. Two Exchange Plaza Partners 76 N. Y.2d 172 Castano v. Zee-Jay See also, enforceable when the Realty Co. 55 A. D.3d 770 866 N. Y.S. 2d 700 (2d New York Life Ins. Co. 32 N. Y.2d 149 , 344 N. Y.S.2d 336 (1973)). When coupled with an insurance procurement clause , the purose of the indemnity clause is not to exempt the protected part from liability to the plaintiff, but to allocate the risk of liability to third paries between the indemnitor and indemnitee. 55 AD. 3d 770 866 N. (Castano v. Zee-Jay Realty Co. 2d 700 (2d Dept. 2008)). As the contract herein contains an express indemnification clause by which Sipala agreed to indemnify TD Ban against losses caused by Sipala s negligent actions or inactions and did not exempt TD Ban for liability for its own negligent actions , and as TD Bank demonstrated its freedom from negligence , TD Ban is granted conditional Sipala. sumar judgment on contractual indemnity grounds over and against [* 11] Lastly, moving defendants contend that defendants TD Ban and Baldwin are entitled to common- law indemnity over and against Sipala and are therefore entitled to conditional sumar judgment on said ground. To establish a claim for common- law indemnification however, defendants must prove not only that they were not negligent , but also that the proposed indemnitor , Sipala, is responsible for the negligence , or in the absence of negligence that it had (Bellefleur v. the authority to direct , supervise , and control the work giving rise to the injur. Benedettov. Newark Beth Israel Med Ctr. 66 AD.3d 807 888 N. Y.S.2d 81 (2d Dept. 2009); Carrera Realty Corp. 32 AD3d 874 , 822 N. Y.S. 2d 542 (2d Dept. 2006)). As no such showing has been made by the moving defendants herein , and as there is a question of fact regarding the negligence of defendant Sipala , conditional summar judgment in favor of the movants on the basis of common- law indemnification is premature. Accordingly, movants application for conditional summar judgment over and against Sipala , based upon common- law indemnity grounds , is denied as premature. This constitutes the decision and Order of this Co Dated: May 7 , 2012 Cc: Perez & Vararo 333 Earle Ovington Boulevard O. Box 9372 Uniondale , NY 11553- 3644 Mallilo & Grossman, Esqs. 163- 09 Northern Boulevard Flushing, NY 11358 Joseph C. Tonetti , P. 548 West Jericho Turnpike Smithtown , NY 11787 ENTERED MAY 0 9 2012 NASSAU COUNTY COUTY CLI." OfFtCE

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