Moore v Great Atl. & Pac. Tea Co., Inc.

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Moore v Great Atl. & Pac. Tea Co., Inc. 2012 NY Slip Op 32441(U) September 6, 2012 Supreme Court, Suffolk County Docket Number: 40348/2009 Judge: William B. Rebolini 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] COPY Short Form Order SUPREME COURT· STATE OF NEW YORK IAS. PART 7 . SUFFOLK COUNTY PRESENT: WILLIAM B. REBOLINI Justice Frances Moore and Scott Moore, Index No.: 4034812009 Plaintiffs, -against- Attornevs [See Rider Annexed] Motion Sequence No.: 001; MG Motion Date: 9111/11 The Oreal Atlantic & Paclfic Tea Company, Inc. d/b/a WaldbuulTIs, J. Ratto Landscaping Ltd., Selden Plaza and SP Real Estate Holdings, LLC, DeFendants. SubmItted: 8/22/12 Motion Sequence No.: 002; MD Motion Date: 10/6111 Submitted: 8/22/12 Upon the following papers numbered 1 to 37 read upon these motions for summary Judgment: NOlice ofMation/Orderta Show Cause and supporting papers, 1-14; lS - 28; Answering Affidavits and supporting papers, 29 - 33; Replying AffidavIls and supportmg papers, 34 - 35; 3637; It is ORDERED that these motions are consolidated for the purposes of detcnnlllation; and it is fUithcr ORDl:;RED that the motion by defendanl J. Ratto Landscapmg dismissing the complaint ORDERED dismissing Ltd. for summary Judgment and all cross claims asserted against it is granted; and it is further that the motion by defendant the complaint against it IS demed. Selden Plaza LLC for summary judgment Plainliffs seek to recover damages for personal injuries sustained by Frances Moore and derivatively by her husband SCOtl Moore in a slip and fall incident which occurred In a shoppIng center parking lot located 111 Selden, New York. Plaintiffs allege 11l their complaint, as amplJl'ied by the bll1 of palticulars, that the defendants Great Atlantic & Pncd'ic Tea Company, Inc. cVbh.1 Waldbaums. J. Ratto Landscaping LTD, Selden Plaza LLC and SP Real Estate Holdings LLC are [* 2] Moor£' \'. Thl' r.rcat Atlantk. ct ¢ ¢ 1. Index No.: .JO.qS/2009 I'agc 2 I able for tht.::accident based un their ncgJigt.::rlt possession and control of the subje('t parkIt1g lot. SpecificaJly. they argue that the defendants were tlegl1genl in. inrer alill. allowillg an unsafe alld inherently dangerous condllion to eXIst on the prelllises: railing to take proper precaution alld safcgu~\f(.Is: rail111gIn properly m;tllltalll and/or repan the premises, fa1l1l1g lu propedy salt ,111d/or sand the :Irea: rall111g:o uls('ovcr the lIlherenl dangerous conuilion of the premises, r~lilll1g10 warn t or the dangerous condition of the prelll1Ses: ~lllJ fail111g10 properly hght, lamp and/or Illuminate the areas III questIon. By stipulation of discontinuancc dated May 2010 this ac(ion was discontinued without FreJudicc agamst defendant SP Real Estate Holdings. LLC. By stipulation of discontinuance dated October 8. 1010, Ihis action was discontinued with prejudice against defendam Great Atlantic & PaCIfic Tea Company. Inc. d/b/a Waldbuunls. Defendant J. Ratto Landscaping (hereinafter J. Ratto) now moves for summary Judgment dismISSing the compla111t as asserted agaInst It 011the grounds that It did not owe the plaintllT a duty of care. By separate motion defendant Selden Plaza, LLC (hcrclllafter Seidell Plaza) moves ror summary J lldgmcnt lhsmi ssi ng t he campi ai nt and al I cross-cl ai IllS asserted agai nst it on Ihe grounds that the plaintl ff cannot establJsh a prill/a/acie case of negligence as against it where it had neither aCllial nor constructIve notice of the ICYcondition that pUlvortedly caused the <lccidenl. The proponent of a summary judgment motion must make a prill/a flu.:ie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence cf any material issues of fact (see Alvarez v Prospect lJosp., 68 NY2d 320 I 19861: Winegrad v New )'ork Univ. Med. Ctr, 64 NY1d 851 [1985J: Zuckermall v City of New York, 49 NY2d 557 [1980]). r'allure to make such primo ./(lCie showing requIres a denial of the motIon. regurdless of the sulTiclency or the opposing papers (see Alvarez I' Prospect lfo~'P., supra: Winegrad v f\r'cw York Ulliv. Meel. Or, sl/pm). Onee thiS showing has been made, howcver, the burden shlrlS to the P:II·ty opposing tht motion 1·01'summary Judgmenl to produce evideIlti:lry prool· in :ldmisslhJc Corm sulTiclenl to cstahhsh the existence or material issues of fact which require a tri:lI or the action (see AlJ'{frez I' Prospect IlIH'p .. .I'llpra: Zuckermall v City a/New York, slIpra)_ Plaintiff testified at her deposition thai the accident oCCUlTed at approximately"" p.m. on January 11.2009 at the shopping center known as Selden Plaza. According to plaIntiff. when she first cntered the parking lot she ohserved snow all over and did not observe any evidence of snow r":ll1oval. There were piles of snow 1Il the parkmg 1m in various locations. At Lhat time. the t,~mperature was vcry cold and no new precipitation was falling. She belIeved It last snowed the day beforc. hut she was unsurc of whether 11had snowed or raincd earlier thut same day. The aCCident L)ccurred arter she parked and as soon as she attempted to get out or her vehlclc. She placed her lcrt foot on the ground, slipped and reI! on ice. When she got up. there was snow III her hatr. 011 the h,\ck (if her head ,lnd on her pants. She \vent In('o a WaldbauJl1's slore and made ~\wnllen repurt or the incident wi [11Lhe manager. The manager also accompanied plai ntllT to the location 01 the aCCident. Upon returning to thc location, Ihe injured p!ainlilT observed that the area was "messy,'· alld looked ;IS though it h;ld not been plowed. sanded or salted. She testified that there was black Ice und th:.!t [* 3] Moore \'. The Crt'at AlIan.it·. et al. Illdcx No.: ~O.qS/2009 Pagl' .~ il was wel. snowy and slushy. PlaliltitT was nut aware of any prior cumplaints aboul the condition of the parKing lot in the ~\rca or her accident. having been made Charles Ed\vard Gundel testil'ied that al the tillle or the Incidcnt he \ovas employed hy Waldhaullls in Selden Plaza as an assistunt store manager. HIs duties did not 1llclude any r'~sp()nslbility wllh respect to the parKing 101. Gundel testified that Wuldbaurn's employees would maintain the sidewalk immediately in front of the store free of hazards, Including dearing snow that Vias present in the area and putting down sand and salt, but that they did not maintalll the parking ]tll Gundel testi fied that the plaintiff reported 10 him on the date orthe accident thut she siJpped and tdl on ice. Gundel did not recall if there had been precipit<ltion on the date orthe incident He wenl to observe the location where she alleged she fell and observed an Icycomlilion In the area. I-Ie did not recall how large of an area the icy condition encompassed, if there was salt or sand on lOp of the ICC.if there were mounds of snow present nearby or if the Ice appeared to be white or dirty. From what he recallcd it was dusk ancl starting to get darK at thc time he observed the conditIon, but thcre werc lights in the parKing lot. Gundel did not know who maintained the lights in the parKing lot or who maintained the parking lot. He did not know il' anyone on behalf orWaldbaull1's surveyed or lIlspected the parking lot for snowy or icy conditions. Gundel was not aware of :.lllYcustomers. employees or vendors who previously complained about the ley condition of lhe parKing 101. Andrew Muq>hy testified lhat he IS employed in maliltenancc by Selden Realty and was primarily assigned 10 maintain Selden Plaza. His duties lIlclude, among other things, maintaining the parking lot and performing snow rellloval and sanding. MU'l>hy testified that his regular hours arc 7 a.m. to 3:30 p.m., Monday through friday, plus three hours on Sundays. lie is also on call 24hours-a-day. Murphy testified that upon arriving at Selden Plaza each morning, he docs an inspection to see If there are any problems that need to be addressed. He also receives assignments from his supervisor based on complalllts or requests made by tenants of Ihe ShOpplllg center. Murphy wstil"ieclthat It is part or his responsibilities to clear the snuw and Ice <lnd to put down sand Ltndsalt In the parkll1g 101.and that this responsibi lity included the location orlhe pl~lll1lIIrs accidenl. Selden Realty proVides him with equipment to pel-form his snow removal duties, including a pick up truck wilh a plow, a two-und-a-hal f yard sander, a snow blower, shovels, salt. sand and spreadcrs. He is also responsihle for maintaining this eqUIpment and ensuring there IS a supply of sand and salt. He lestilled lhal during the winter when sand and snow were present. sanding and salting lhe parking lot was part of the daily routine. and that in the event of a snow fall, he and his co-worker would lJkcly be .1[ the shopping center all day. They would stay until the precipitation ended and the parking 101 was clear. There was no minimum accumulation of snowfallthal would lrigger thcir snow dearing dlons. They would put the sander to use after Ihey were done plowing and on any OCC'-ISlonsthat the parking 101was ICY. Murphy testified [hat. if necessary. they wnuld also hire out SW1\V removal servIces I'rolll ~Ill()lhcr comlxlIlY. III the winter or 2008!20()9, J. Ratio was the contractor that would IJl"ovlde such additional services. He did not recall on how many occasions he calledJ. R~ltl0 to provide servIces. J. Ratto did not ever come on their own, hut MU1Vhy \vould call them III when he needed them to perform snow removal services. Accordmg to MlllVhy. he would generally call J. Ratto when six lllches of snow or more had acculllulated in a given day to remove the snow and to sprcau sand and [* 4] Moore v. The Great Atlantir.l't Index No.: -10348/2009 Page 4 al. salt. Murphy was always present dUfing the times that J. Ratto came to perform snow removal servIces ~lrldwould make sure that the work was completed properly. After J. RallO left, Murphy and his co-worker would spot c,lcan LInyrcmaini ng snow or ice wIth theIr own equIpment. .J. Rallo would bill Selden Plaza hased on the number of hours It look them to perform their wDrK. Murphy testified that he took care or any Ice or snow thaI wus in the p<'lrking lot on a daily basis, but did not have an llldependent recollection of having cleared the parking lot on the date of tile accident or the date prior to the accident. He has no independent recollection of being <.Itthe shopping center on the dale of the incident and did nOI know i r he hired J, R<.Ittoto perform work on such d<.lte. MUlVhy testified that any COmpl<.llllts regarding snow or ICC in the parking lot of the shopping center would go to Seldcn Realty's main office. He was not aware of and did nm recall receIvIng any complaInts regarding icy conditions in Ihe location of the plainti rf's accident. John W. RallO testified that he IS the president of J. Ratto, a landscape and destgn business that engages in snow piowl ng actiVIties In the winter months. J. Ratto entered a snow plow services contract wi th Selden Realty. Such contract provided rates for hourly use of specified equIpment and l'perators. The contract did not provide that J. Ratto would automatically send equipment to a location based on snow fall, und he never went automatically to Selden Plaza to pcrrOim snow r::moval services. Rather, MUlVhy would call and say whut equipmelll he needed and when he Eeeded it. When J, Ratto arrived, the driver would check in with Murphy. and Murphy would ultimately dismiss the dnver when he felt the work was completed, Murphy would tell them, among other things. how much sand and salt to apply and where to apply the sand and salt III the parking lot- Shortly after completing services at Selden Plaza, J, Ratto would prepare an InvoIce based on the type of equipment and number of hours spent at the location. Invoiccs prepared by J. Ratto with I-:;spect to service at Selden Plaza included a January 2, 2009 invoice for 8.5 hours of work lllcluding plow1I1g. applYlllg salt and sand. It also mduded a January 1::1, 2009 invoicc for service perrormed on Jamwry 11,2009 which included 2 hours or light plOWlllg ,-mclspreading salt and sand. The evi dCllce Sllbill Itted cslabll shed J . R atln .s prilllClltlcie en tl tlement t{)SUIllmilry j udgmcnt dIsmISSing thc compl~llnt as asserted against it. As a general rule, <liJmitcd contractual obligatIOn t ,) provide snow removal services docs not render the conlractor liable in ton for the personal injuries "f third partics (Kllox I' Sodexlw Am., LLC. 93 AD3d 642, 939 NYS2d 557. 5.:'i8 rld Depl 20 llJ: see Lubell v Stollegateat Ardsley Home OWller.~· ASSII., IIIC., 79 AD3d 1102,915 NYS2d 103 r2d De-pt 2010]). However, the Court of Appeals has recognized Ihat exceptions to this rule apply: (I) \"h~r~ the conlracting pany. in failing LOexcrcise rcasonable carc inlhe performance of IllS or her duties, launches a forcc or instrument of harm, (2) where the plaintiff dctrimentally relics on the continued performance or the contracting party's duties, and (3) where the contracting party has entIrely displaced another party's duty to maintain the premises saldy (Knox I' ."odexlw Am., LLC. ,llIpl"a at en AD3d 642; see E\'pirwll' Melville SflOW COlltr,'i., 98 NY2d 13(), 14012002]. Lubell \' Stollegate at Ardsley lIo1l1e Owners ASSJI.,lflc .. SII/)((I) Here, J. Runo eSlablished a prill/a facie cntitlement to judgment as ,I mallcr of law hy demonstrating that the injured plallltill was not a party to Its snow rcmoval contr<.lct and thaI it thereforc owed her no duty of care (see Kllox I' Sodex110 Am., LLC, supra). Contrary to the [* 5] Moore \'. The (;reat Atlantic. et al. I ndex No.: ...O.3..f.8/2009 t Page 5 plaintiffs' contention. J. Ratto was nm reqUIred to affinnatively demonstrale that (he three exceptions tl) the general rule did not apply In order to establish ItS prillwji:{(·le entitlement to judgment as a malleI' of law since the plaintiffs did not allege facts In theIr complaint or bill of paniculars which \'/ould establIsh the possible appllcabi[Hy of any of these exceptions (see Henriquez v Inserra Supermarkets, IlIc.. 89 AD1d 899, 933 NYS2d 304 [ld Dept 20 II J: Lubell v Stonegate at Ard~·ley Home OWllers ASSII., IIlC., supra: Abramowitz v Home Depot USA, fIlC., 79 A03d 675. 9[1 NYSld 639 [2d Dept 20 10l In any event, the evidence submitted is sufficient to demonstrate that these three exceptions arc llwppllcable. In this n.:gard, the record is devoid of any indication or allegation thai the mjured phllntilT detrimenta[ly relied on 1. Ratto's continued performance or its dutIes under its agrecment WIth Selden Pl<.lI;a. Indeed, the plal11tiff udmittedly had no knowledge 01" any relallonshlp between J. Ratto and Selden Plaza (see ScTlllltZ v Bridgeport & Port Je/ferson Steamboat Co., 68 AD3d 970, 891 NYS2d 146 [2d Oept 20091). The eVidence also clearly demonstrates Ih<lt J. RallO did not entirely displacc Selden PJuzu's duty to maintain the parking lot in u reasonably sufe condition (see Rubistello v /Jartolilli Landscaping, Inc., 87 A03d L003,929 NYSld 298 [2d Oept 2011 J; Lehman v North Greenwich Landscaping, LtC, 16 NY3d 747, 942 NE2d 1046,917 NYS2d 621 l20 I I D. Last[y, the evidence submitted was sufficient to demonSlratc that the purpol1cd icy condition complained or was not the result of J. Ratto launching a force or instrument or harm. Although a defendul1t who undel1akes to render services and then negligently crcutes or exacerb:ues a dangerous conditIon may be hable for any resulting injury (see Espinal" Melville Snow Contrs .. sl/pra), the evidence submitted indicates that J. Rano did not perform snow n::moval services immediately prior to the accident. Indeed, according to the injured plallltiff's own testimony, she did not observe uny snow removal equipment and the entIre parking lot was messy and appeared to be unplowed. Nowbly, ull services provided by J. RallO. including sanding and salting. wcre performed solely at the request of Selden Plaza and under Selden Plaza's direct superVIsIon. JI1 plainlills opposition to .I.Ratto's primo facie showing 01"entitlement to sUlllmary judgmcnt, the failed to submit evidence that was sufficiel1t to r<.lisea triable Issue of fael (see Lubell v ,~tol/ega(e at ;1nli.-ley l/o1Jle ()wfleni Ih.m., IIlC" supra: Abramowitz v Home Depot USA, 1m:.. sl/j7ra). Acc01'chngly, the motIon by J Ratto for summary judgment dismissing the compJalllt <.lS asserted aga111st it is granted. The evidence submitted fails to establish Selden Plaza's primaIacie entitlement (0 summary judgment in irs favor. /\ real propeny owner or a purty in possession or control of real propl:ny will he held buble for injUlies sustained in a s[ip-and-fall accident 1tlvolving snow and ice on its proPCl1y whcn it created the alleged dangerous condition or hud actual or constructive notice of it (see Calltwell v Fox lIill Community A,\·SI1 Inc .. 87 A03d 1106.930 NYSld 459 [2d Dept 201 I J: see .. , also Sarisolm v 341 Commack Rd., Illc .. 89 AD3d 1007.934 NYS2d 201 [2d Dept 201 I]). A defendunt may be held liable for a dangerous condition on its premises caused by the uccumu[atioll of snow or Ice upon a show1l1g that 11had actual or constructive notice of the condition, and Ihal a reasonably sufficient time had lapsed since the cessation of the SiOrm to take protective measures (Sabatiflo 1'425 ()serA ve., LLC. 87 /\D3d 1127, I 128,930 NYSld 598 (2<.1 Dcpt 20 I I): see Roo/e" v 141 Great Neck Rd. Condo .. SS AD3d 893, 92:'i NYS2d 165 [2d Dept 201 II). [* 6] v. The Creat Atlantic. et al. Index No.: ~03-l.SI2009 Page 6 1r1001"C In this cuse. Selden Plaza fai led 10 submit sufficient evidence 10 affinnatively estabhsh that it neither created nor had actual or constructive notice of the alleged dangerous condition of the rarking lot (see Stewwt v Sherwil Holding COIp., 94 AD3d 977. 942 NYS2d 174l2d Dept 20121: we (/Iso Healy I' Bartolomei, 87 AD3d 1112,929 NYS2d 866 r2d Oep' 2011/: Sarisolm v 3.J/ Commllck Rd., llle., 89 AD3d 1007.934 NYS2d 202 [2d Dcpt 20 llj). Indeed. Selden Plaza offered 1'0 evidence on the issue of whether it created or had actual or constructive noticc of thc allegcdly Jangerous condition in the parking 101.or of whether a reasonably sufftcicnttime had elapsed after t'1Ccessatioll of snowfall to enable itlo take remedial measures (see RooJell v 141 Great Neck Rd. COlldo .. supra). The only evidence offered by Selden Plaza in sUPP0l1 of such a finding was the Leposition of Murphy, who testified thai he had no independent recollection of being at the shopping center or having cleared the parking lot on the date of [he :.lccident or the date prior to the accident (\'ee Migllogna v l-Elevell, fnc., 76 AD3d 1054,908 NYS2d 258 [2d Dcpt 2010D_ Accordingly. tne motion by Selden Plaza for summary judgment is denied. , (' Dated: / f )::pCI) " \,. I f ,_ \. HON. WILLIAM Il. REBOLlNI, J.S.c. FINAL DISPOSITION x NON·FlNAI. DISPOSITION [* 7] RIDER f\110111CV for Plaintiff: Clerk of the Joseph B. Fruchter. Esq. j...J.{) Fell Court. Suile]O I Hauppauge. NY 11788 Allotl1cy for Defendants The Great Atlantic & Pacific Tea Company. Inc. d/b/a Waldhaums: Sobel & Sch iW.T, LLC ,~64 New York Avenue, Suite IO() IlullLJnglon, NY 11743 8110rnCY for Defendant J, Ratto ],alldscapin£!.: Baxter, Smith, Shapiro. P.c. 99 North Broadway Hicksvrlle, NY [ISOl 8t10TllCV for Defendant Tromcllo McDollllel1 & Kehoe P.O. Box 9038 Melville. NY 117..+7 Selden Plaza: COLlri

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