Mauro v 780 Broadway, LLC

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Mauro v 780 Broadway, LLC 2012 NY Slip Op 33083(U) December 24, 2012 Sup Ct, Suffolk County Docket Number: 10-27013 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] INDEX No. CAL. No. SHORT FOIW ORDER CO~ 10-27013 12-003830T SUPREME COURT - STATE OF NEW YORK IAS. PART 33 - SUFFOLK COUNTY PRESENT: Hall. THOMAS F. WHELAN Justice of the Supreme COUl1 MOTION DATE 7-25-12 ADJ. DATE 10-15-12 Mot. Seq. # 002 - MD ---------------------------------------------------------------X CAROL P. MAURO, Plaintiff, CELL/NO & BARNES, P.C. Attorney for Plaintiff 600 Old Country Road, Suite 500 Garden City, New York 1I530 BELLO & LARKIN Attorney for Defendants 780 Broadway and Carpentier Properties 150 Motor Parkway, Suite 405 Hauppauge, New York 1I788 - against - 780 BROADWA Y. LLC CARPENTIER PROPERTIES CORP., LAWRENCE LABS, INC. d/b/a TOTAL PET CARE and LOUIS MONACO, Defendants. CASCONE & KLUEPFEL, LLP Attorney for Lawrence Labs 1399 Franklin Avenue. Suite 302 Garden City, New York 11530 LOUIS MONACO. Defendant Pro Sc 17 Maler Lane Patchogue, New York 11772 ---------------------------------------------------------------X Upon the following papers'numbered to Show Cause and supporting papers I - 13 supporting papers ]4 - 17: ]8 - 22 : Replying COI111SeI)1 SUPPOJ1and oppo!ed to the lllNioll) ; I to -lL rcad on this motion for summary judgment; Notice of Motion/Order ; Notice of Cross Motion and supporting papers_: Answering Affidavits and Affidavits and supporting papers 23 -14; 15 - 26, Other~; (l1nd llfLr !Jealil\g it is, ORDERED that this motion by defendant Lawrence Labs, Inc. d/b/a Total Pet Care for an order pursuant to CPLR 3212 granting summary judgment in its favor dismissing the complaint and all cross claims against It or. in the alternative, for summary judgment on its cross claims for common-law indemnification against defendants 770-780 Broadway, LLC and Carpentier Properties Corp. is denied. [* 2] Mauro v 780 Broadway Index No.1 0-270 13 Page No.2 This is an action to recover damages for personal injuries allegedly sustained by plamtilfon December 22. :2009 when she slipped and fell on ice in the parking 101or a shopping center located at 780 8road"vay !\ venue. Holbrook. New York. The shopping cen1er was owned hy 770-780 Broadway. LLC (770-780 Broadway) and the property manager was ddcndant Carpentier Properties. Inc. (Carpentier). Total Pet Care was a tenant of the shopping center pursuant to a lease with defendant Carpentier. Plaintitf asserts a third cause of action in her complaint against defendant l.awrence I,abs. Inc. cllb/a Tota! Pet Care (Lawrence Labs) for negligence in. among other things. the maintenance and control of the premises. By her bill of particulars, plaintiff alleges that defendant Lawrence Labs was negligent in. among other things, allowing the parking lot to become full of snow and ice, failing to inspect the parking lot. and failing to clean the snow and ice. In addition, plaintiff alleges that delCndam had actual notice of the dangerous condition inasmuch as it created or allowed said condition. and received notice of the condition from various parties. and that defendant had constructive notice of said condition as it existed for such a period of time that defendant should have discovered and remedied it. Defendant Lawrence Labs now moves for summary judgment dismissing the complaint and all cross claims against it on the grounds that the landlord and property manager retained e:-:clusive responsibility to remove snow and ice from the premises pursuant to the lease agrcCml:llt. In the alternative. defendant Lawrence Labs seeks common-law indemniJicution from the landlord and property manager. In support of the mOlion. defendant I,awrence Labs submits the summons und complaint. its answer with a cross claim against its co-defendants lor contribution and/or indemnification. the answcr of defendant Louis Monaco (Monaco) and the answer of defendants 770-780 Broadway and Carpentier \'Vitha cross-claim against their co-defendants for contribution or indemnification. plaintiffs bill of particulars. the deposition transcripts of plaintiff. of Richard Carpentier on behalf of defendant Carpentier. of Joseph Manzi on behalf of defendant Lawrence Labs and of defendant Monaco. the note of issue. the lease between defendant Carpentier and defendant Lawrence Labs. a rider to the lease. and an invoice to defendant Carpentier lor defendant Monaco's services on the subject date. 1n opposition to the motion. defendants 770-780 Broadway_ LLC s/llIa 780 8roadway. LLC and Carpentier Properties Corp. contend that there arc issues of fact as to who was responsible for insp~cting for the existence of ice and for applying sand and salt to the parking lot inasmuch as till' lease only mentions snow removal as the responsibility of the landlord. They note that hased all the deposition testimony or RIchard Carpentier. it was the tenant's responsibility to inspect the parking lot 111 front of its store for ice and to contac1 Louis Monaco to salt and sand the area whereas Mr. Man:t.i indicated at his deposition that If 111.:c1etenlllned a dangerous condition existed in 11."ont his store. he would contm:t of Richard Curpcnticr who \'liould then contact defendant Monaco to salt i:.llld sand the area. According tll ddendants. there was an oral agreement between the landlord and temmt concerning ice removal li'OI11 the parking lot They argue that plaintifTfell vcry close to and almost directly in front of the entrance of Total Pet Care. that defcndant Lawrence Labs had a1least constructive notice of the ice condition. and was negligl.:nt in its inspection and its failure to have salt and sand applied to the area. Defendants submit copies of three still photographs from the Total Pet Care store outdoor video camera. onc dc-picting plainti ITwalking towards her vehicle and the other two depicting her lying on the ground alter she fell. as \\/ell as a copy of the lease. [* 3] Mauro v 780 Broadway Index No. 10-27013 Page No.3 In her opposition to the mOlion, pJainti rr agrees with the assertions or defendanls 770- no Broacl\,vayand Carrcnticr that numerous issues of fact exisl as to the defendants' respective liability warranting denial of the motion. She submits the unsworn report of a meteorologist to show that there was suf1icient time between the storm and her accident for a dangerous condition to occur and thell be corrected. In reply. defendant Lawrence Labs argues that defendant Monaco· s hulure to entirely remove the snow from the parking lot surJace resulted in a hard crust of Ice and that said snow removal rrom a shared parking lot was the sale responsibility of defendants 770-780 Broadway and Carpentier pursuant to the !ease, which rl::sponsibility could not bl::displaced upon defendant l.awrence Labs based on a purported oral agreement the moment the remnant snow turned to ice. Plaintiffs deposition testimony of June 27. 2011 reveals that tIll.:: ccident occurn::d on a Tuesday a at approximately 1 p.m. in the afternoon. the weather was cold, and plaintiff was wearing slacks, a jacket and sneakers. Plaintiff testified that it had snowed more than a foot the previous weekend. She described the condition of the parking lot upon her arrival as plowed in certain areas while other areas had packed ice and snow. In addition, plaintiff testified that she walked very carefully on ice and snow from her vehicle to the store and remained in the store for approximately 10 minutes. Plaintiff stated that she left the store with a small bag in her hand and began walking back to her vehicle, which was 20 or 30 feet to the right of the store entrance, taking the same route as she took to get to the store. Plaintiff further stated that when she was near the store entrance the parking lots's asphalt was observable but as she walked farther 3\"lay, the asphalt was covered and plaintiff was walking on solid Ice. When plamtiffwas a fcv.. feel away from the rear of her vehicle she slipped and fell on her back. ' Richard Carpentier testitied at his deposition on July 14.2011 that he is an otliccr and shareholder ofdefcndant Carpentier. which manages the property, and thal he is also an officer and shareholder of defendant 770-7&0 Broadway, which owned the subject premises on th.,;; ate of lhe d accident. Mr. Carpentier testified that he personally took care uflhe management orthe property. In addition. he testified that defendant Lawrence Labs was one of three tenants of a brick and block building located at 7&0Broadway Avenue that shared a parking lot. Mr. Carpentier also testified that defendant Carpentier was responsible for the snow and ice removal on the parking 101 on the date of the subject accident. He explained that defendant Carpentier would hire a snow plow company. that of defendant Monaco, to plow, that there was no contraei for his services. and that detendant Carpentier did not supply lhe salt or sand. Mr. Carpentier identified the invoice to dekndant Carpentier for defendant rv!onaco's services on the subject date. Mr. Carrentier stated that he inspected the property once a weekthat during the winter 01'2009 prior to the accident there were bags oCsnlt by the entrance and e:-.:il oor d \vithin Total Pet Care's unit. At his deposition on July 14,2011. Joseph Manzi testified that he is an ofliccr of defendant Lawrence I.abs which is in the wholesale and retail pet supply business and that he has bcen at the subject address since 1997. In addition. he testified that he was not present at the premises at the time of said accident. He explained that 780 Broadway is a 15,000 square foot building divided into three areas lix three tenants and that he occupied the front orthe building, he sublet the middle of the building to a dog training facilJty. and that there may have been a lenant in the rear. In addition. Mr.. \!funD explained [* 4] Mauro v 780 Broadway Index No. 10-27013 Page No, 4 that the parking lot in front orthe building was a shared parking lot that was used by t~nants of his building as well as tenants orthe adjacent building. 770 Broadway. He also testified that his employees would remove snow from the cement area directly in tront of the entrance/exit door that was difficult l'or the 5no\\/ contruclor to access. Mr, Manzi further testilied that his employees had also swept or shoveled snow or put ice melt on the black nsphalt parking lot hut that he had no knowledge if'they did 50 prior to plaintiffs fall. Mr. Manzi stated that on occasions prior to the subject accident he had observed deltmdant Monaco removing snow but never saw him applying salt or sand. He added that Lawrence Labs "would never ever use salt because we're in the pet business and people bring their pets into our store and that's not healthy for their pads" and that they would possibly use sand. Louis Monaco testified at his deposition on January 30, 1012 that the first snowstorm of the season was signi licant, 16 to 18 inches of snow, and it began on December 20, 2009 and ended the followmg day carly in the morning. He performed snow removal services on the subject parking lot that was empty of any vehicles with his brother using two tTucks to plow, that is, push the snov{to one side, until approximately 4:30 a.l11.on December 21. 2009, one day prior to plaintiffs l·i:dl. Neither truck was equipped with a salt or sand spreader. Defendant Monaco stated that during such a signilicant snowstorm he probably used parts of the some of the parking areaS to pile the snow instead of pushing it all the way to the rear. In addition. he testified that he had a verbal agreement with Mr. Carpentier for sno\v plowing and did not receive any directions hom anyone who worked for Total Pet Care. Defendant Monaco explained that he had no agreement to salt or sand because Mr. Carpentier did nOI like the cost of having to clean lip the sand at the end of the year and it was his understanding from speaking with Mr. Carpentier that lhe pel stores did not like sand or salt because neither is ··paw {fiendly.'- lie added that he did salt or sand the parking lot once the year prior to the subject accident at the request of Mr. Carpentier after a "terrible ice storm." Mr. Monaco also testified that when he completed plowing in the early morning of December 21, 2009 there was less than a quarter of an inch of snow left tbat was ice. /-Ieexplained that sometimes the snow cannol be scrap~d down to the black asphalt because of a crust of ice or bard packed snow. Defendant Monaco continued that he did not contact Mr. Carpenti~r about the ice because he knew that unless he received a call for that purpose ·'they" did not want any salt or sand on the parking lot. Paragraph 38 of the rider to the lease dated October 14, 1997 provides ··Tenant shall pay a common area fee" ... ·This charge shall be applied by Landlord for but not limited to maintenance of law-nand parking lot which shall include such items as snow removal. sweeping and pot hole repairs'" Paragraph 48 of the same rider indicates ·'Parking spaces arc in (ammon with the oth('r tenants in the buildlllg.·· Paragraph 20 of the lcase provides " .. This instrument may not be changed. 1l1odi!ied. dIscharged or tenninated orally." ·'To establish a prima fucie C:lseof negligence, a plaintiff must establish the existence ora duty oWl..'d a defendant to the plaintiff: a breach 01" by that duty_ and that such breach was a proximate cause of injury to the phlintiff· (Nappi v Incorporated Vii. of Lynbrook. 19 AD3d 565. 566. 796 NYS2d 5371)d Dept 2005}). "rLJiabilil)' for a dangerous condition on property is generally predicated upon ownership. [* 5] Mauro v 780 Broadway Index No. 10-27013 Page No.5 occupancy. control or special use of the property" (itl.: see Quick v G.G. 's Pizza & Pasta,lllc .. 53 AD3d 535.536.861 NYS2d 76212d Dept 2008]). A tenant has a common-law duty to remove dangerous or dclective conditions from the premises it occupies. even though the landlord may have explicitly agreed in the lease to maintain the premIses and keep them in good repair (see Sariso/Ifl v 341 Commack Road, Inc .. 89 J\D3d J007. 934 NYS2d 202 [2d Dept 20J IJ; Reimold II Walden Terrace, bu.:.. 85 AD3d 1144. 926 NYS2d 153 [2d Dept 2011]; Cohen v Central Parking Sys .. 303 AD2d 353. 756 NYS2d 266[2d Dep! 2003]; McNelis v Doubleday Sports. 191 AD2d 619. 595 NYS2d 118 [2d Dep! 19931: Chadis v Gmlld Ulliall Co.. 158 AD2d 443. 550 NYS2d 908 r2d Dcp! 1990]). To impose liability upon a defendant in a slip-und-bll action. there must be evidence that the defendant either created the condition which caused the accident, or had actual or constructive notice of the condition {see DeLeon " Westhah, Inc .. 60 AD3d 888. 875 NYS2d 589 [2d Dept 2009"1:Sioalle v Costco Wholesale Corp .. 49 AD3d 522. 523. 855 NYS2d 155 l2d Ocpt 2008 D. 1\ defendant has constructive notice of a defect when the defect is visible and apparent. and existed for a sufficient length of lime before the accident that it could have been discovered and corrected (see Gordon v Americall Museum of Natural History, 67 NY2d 836, 837-838, 50 I N YS2d 646 [1986]; Cusack v Peter Luger, Inc .. 77 AD3d 785. 7S6. 909 NYS2d 532 [2d Dept 2010]~ McCormick v Patriot A~\·soc. 292 AD2d 573, . 739 NYS2d 443 [2d Dep' 2002]). It is well settled that the parry moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence in admissible form to demonstrate the absence of any material issues Ofj-~lct(see Alvarez I' Prospect Hosp .. 68 NY2d 320. 508 NYS2d 923 11986];Zuckerman v City of New York, 49 NY2d 557. 427 NYS2d 595 [1980.1:Frieud,\' of Alliuwls, Illc. l'Associated Fur Mfrs., Inc .. 46 NY2d 1065.416 NYS2d 790 [1979]). A defendant moving for summary judgment in a personal injury action has the burden of establishing that it did not create the dangerous or defective condition or have actual or constructive nolice of its existence (see Star/ing II Suffolk COllnty Water Auth.,63 AD3d 822, 823, 881 NYS2d J49 [2d Dcpt 2009j)_ I lere, the adduced evidence shows that the <!fea where plainti ITfell was part of tile common parking area shared by tenants of780 Broadway, maintenance of which was the responsibility of the landlord. defendant Carpentier. pursuant to the tenns of the lease (see Henriquez v IWierra Supermarkets, Inc .. 89 AD3d 899, 933 NYS2d 304 l2d Oept 20111: Mil/mall v Citihllllk, N.A .. 216 i\D2d 278, 627 NYS2d 451 l2d Dert 1995]; cl Sarisoltn II 341 Commack Road, 111£' ¢ ¢ 89 AD1d 1007. 934 NYS2d 202l'2d Dept 201lJlstorc did not share parking lot with other stores so parking lot was parr store's occupied prcmise:;]). Notably, the color photographs from the Total Pet Care store's video camera clearly depict plaintiff as having fallen in the parking lot right next to the parking stalls where whicles were parked and across from. but not adjacent to or near. the store's entrance (Lf Saraceno v First Nat!. Supermarket", luc., 246 AD2d 638. 668 NYS2d 234 [2d Dept 1998] [Court unahle to d(:(~rminc on th~ recDrd whether pin inti tTtClI on part of the common area of tht: shopping ccnll~r. for which maintenance and snow removal were the responsibility of the landlord <lndmanager. or Cellun u side'",alk adjacent to the building occupied by tenant for which tenant was responsible fiJr snow and ice removal pursuant to the lease]). However, defendant Lawrence Labs failed to demonstrate its entitlement to judgment as a matter of law. The prolTered deposition testimony reveals that Its officer. Mr Manzi. acknowledged that defendant Carpentier's snow maintenance was linllkd to snow removal [* 6] Mauro v 780 Broadway Index No. 10-27013 Page NO.6 and plowing and Mr. Manzi expressly stated that he did not want any salt or sund applieJ to the parking lot because those materials were not healthy for customers' pets. The deposition testimony also reveals that said desire or re411cston the part of defendant Lawn.:ncc Labs was known to and honored by defendant Monaco unless he was expressly directed to apply salt or sand by Mr. Carpentier. Moreover. the deposition testimony of Mr. Manzi reveals that Total Pet Care' s employees had. on occasion. prior to said accident. shoveled or put ice melt on the parking lot. The proffered proof indicates that defendant Lawrence Labs had some involvement in the maintenance of the parking lot and may have restricted its maintenance 'with respect to the removal of ice thereby raising issues of fact as to whether de/cndant Lawrence Labs created. allowed or made possible the crealion of the icy condition that caused plaintiff to f~tli(see flea (v v Bartolomei, 87 AD3d 1112. 1113,929 NYS2d 866 1"2d Dept 2(111). Therefore, thl.': request by defendant Lawrence Labs for summary judgment dismissing the complain! as against il is denied. The prinCiple of conunon-Iaw, or implied, indemnification permits a party who has been compelled to pay for the wrong of another to recover from the \.vrongdoer the damages the party paid to the injured party (see Arrelldal v Trizechalm Corp .. 98 AD3d 699, 950 NYS2d 185 [2d Oept 20121: Bellef/eur v Newark Beth Israel Mell. Ctr.. 66 A03d 807, 888 NYS2d 8] [2d Dept 2009]), An award of summary judgment on a claim for common-law indemnification IS appropriate only where there are no triable issues of fact concerning the degree of fault attributable to the parLies (see Aragwuli v Tislmum Realty & COllstr. Co., lltc., 68 AD3d 1027.891 NYS2d 462 [2d Dept 20091 Coque I' Wildflower E<;tatesDellelopers, fllc .. 31 AD3d 484. 818 NYS2d 546 [2d Oept 2006}). Inasmuch as there are issues of fact as to whether any negligence on the part of defendant La\.vrenee Labs caused the icy condition of the parking lot. the request by defendant Lawrence Labs for summary judgment dismissing the cross claims against it for common-Imv indemnification and contribution is denied as premature (see Powell v CVS lerumlem N. Bellmore, LLe. 71 AD3d 655. 896 NYS2d 139 [2d Dcpt 2010]; Aragtllu/i v Tis/mum Realty & COllstr. Co., fllC., 68 i\D3d 1027, 891 NYS2d 462; Watters I' R.D. Brauch Assocs., LP. 30 AD3d 408, 8]6 NYS2d 193 l2d Dept 2006'1). The alternate request of defendant Lawrcnce Labs for summary judgment on its o\vn cross claims for common-law indemnification is denied as premature for the same reason (see George v ManlUllls of MA, /Ilc .. 61 AD3d 925. 878 NYS2d 143 [2d Dcpt 2009]). Accordingly. thc instant motion is denied.

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