Gonzalez v Cali So. W. Realty Assoc. L.P.

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Gonzalez v Cali So. W. Realty Assoc. L.P. 2017 NY Slip Op 33394(U) June 29, 2017 Supreme Court, Westchester County Docket Number: Index No. 52799/2017 Judge: Orazio R. Bellantoni Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: WESTCHESTER COUNTY CLERK 06/29/2017 04:54 PM NYSCEF DOC. NO. 211 INDEX NO. 52799/2017 RECEIVED NYSCEF: 06/29/2017 SUP1U~ME COUR'f COURT OF THE STATE OF NEW YORK YORK SUPREME THE STATE COUNTY OF WESTCHESTER COUNTY WESTCHESTER To commence time To commence the statutory statutory time period appeals as of of right right period for appeals (CPLR 13 [a]), you are· are (Cl'LR 55 55l3[a]), advised to serve of . advised serve a copy cupy of order, with noliee of of this order. with notice entry, upon all parties." parties.· entry, upon ull PRE SENT: PRESENT: HON. ORAZIO ORAZIO R. BELLANTONI BELLANTONI HON. JUSTICE OF THE THE SUPREME SUPREME COURT COURT JUSTICE YESEN]A GONZALEZ, YESENIA GONZALEZ, Plaintiff(s), Plaintiff(s), ORDER ORDEH. ]ndcx No.: 52799/2017 52799/20] 7 Index Motion Motion Date: 4/26117 4/26/17 against - against WEST REALTY REALTY ASSOCIATES ASSOCIATES L.P., CALI SO. WES'f MACK-CALI SUB XIV, INC. f/n/a/ MACK-CALI finial CALI MACK-CALI R]~ALTY SUB XIV, INC., MACK-CALI R£ALTY CORPORATION, LASCON CORPORATION, LASCON INC. and MACK-CALI SO. WEST WEST REALTY REALTY ASSOCIATES ASSOCIATES MACK-CALI L.L.e., L.L.C., Dcfcndant(s). Defendant(s). Defendant Lascon Lascon Inc. (Lascon) (Lascon) moves (#00 I) for an order, order, granting summary Defendant moves (#001) granting summary judgment Defendants Cali So. West Realty Associates Associates L.P. (SW (SW LP), LP), Mackjudgment in its favor. Defendants West Realty MackCali Sub XIV, XIV, Inc. f/n/a flnla Cali Sub XIV, Mack-Cali Realty XIV, Inc. (Sub XIV), XIV), Mack-Cali Realty Corporation Corporation (MC), and Mack-Cali Mack-Cali So. West Realty Associates L.L.C. (SWRA LLC) (collectively, Mackwe·st Realty Associates L.L.C. (SWRA LLC) (collectively, MackCali) cross-moves cross-moves for an order, Mack-Cali summary summary judgment, dismissing the order, granting granting M·ack-Cali judgment, dismissing complaint cross-claims, or, in the alternative, conditional complaint and all cross-claims, alternative, granting granting Mack-Cali Mack-Cali conditional indemnification on its contract against Lascon, summary judgment dismissing the indemnification contract against Lascon, granting granting summary judgment dismissing complaint and cross-claims cross-claims as to SW LP, Sub XIV, and M-C. complaint M-e. [* 1] following papers The following papers were were read: Notice of Motion (HOO 1), Affirmation, Notice of Motion (#001), Affirmation, and Exhibits Exhibits (14) Affirmation I) Affirmation in Opposition Opposition and Exhibits Exhibits ((I11) Affirmation Opposition, Exhibits Exhibits (3 (3), of Law Affirmation in Opposition, ), and Memo Memo of Law Affirmation Affirmation in Reply Reply . 17-28 ·. 29-33 34 Notice of Cross-Motion Cross-Motion (#002), (11002),Affirmation, of Law Law Notice of Affirmation, Exhibits Exhibits (16), and Memo Memo of Affirmation Opposition and Exhibits Exhibits ((12) Affirmation in Opposition 12) Affirmation of Law Affirmation in Reply, Reply, Exhibit, Exhibit, and Memo Memo ofJ . . aw 35-53 54-66 54-66 67-69 67-69 1 of 4 1-16 1-16 FILED: WESTCHESTER COUNTY CLERK 06/29/2017 04:54 PM NYSCEF DOC. NO. 211 INDEX NO. 52799/2017 RECEIVED NYSCEF: 06/29/2017 of background, background, plaintiff plaintiff commenced commcnccd this action action to recover recover damages damages for By way of personal injuries injuries allegedly allegedly sustained sustained on January January 15, 2014 when when she slipped slipped and fell on personal exterior steps leading leading from the rear rear entrance entrance of of the premises premises known known as I100 Corporate exterior 00 Corporate Boulevard South, South, Suite 111, Ill, Yonkers, Yonkers, New New York. York. Lascon Lascon and Mack-Cali Mack-Cali now move move for, Boulevard among other other things, things, summary summary judgment. among judgment. motion for summary summary judgment, Court is to determine determine whether whether triable triable issues issues On a motion judgment, the Court of fact exist or whether whether judgment granted to a party party on the proof proof submitted submitted as a of judgment can be granted matter of of law (see Andre Pomeroy, 35 NY2d The movant movant must must set Andre v Pomeroy, NY2d 361, 364 I_[1974 1974 J). The matter showing of of entitlement entitlement to judgment matter of of law, tendering tendering judgment as matter forth a prima prima /aeie facie showing sufficient evidence evidence to demonstrate demonstrate the absence absence of of any material material issue issue of of fact (see Alvarez sufficient Alvarez v Prospect movant sets forth a prima Prospect Hospital, Hospital, 68 NY2d NY2d 320, 324 [[1986]). 19861). Once the movant prima /aeie facie burden of of going going forward forward shifts shifts to the opponent opponent of of the motion motion to produce produce case, the burden evidentiary proof proof in admissible admissible form sufficient sufficient to establish establish the existence existence of oC a material material issue evidentiary of fact (see Zuckerman offact Zuckerman v City of 0/ New York, 49 NY2d NY2d 557, 557 11980 ]). D. support of oC its motion, motion, Lascon Laseon proffers proffers various various evidence, evidence, including including the deposition deposition In support transcripts from Cromplaintifl~ non-party building building engineer, engincer, and Lascon's Lascon's president president and owner owner transcripts plaintiff a non-party wcll as photos photos taken taken on the date of of the subject subject accident, accident, and Lascon' Lascon's s contract contract for the as well removal of of snow snow and ice icc from the Premises. Premises. Lascon Lascon notes that on the date of oC the accident accident removal Lascon had a contract contract with Mack-Cali Mack-Cali to perform snow and/or and/or ice icc removal removal at the Premises. Premises. Lascon perform snow contends that its contractual contractual undertaking undertaking docs not expose cxpose it to liability liability and that Lascon contends none of of the exceptions exceptions to this rule arc applicable. applicable. Lascon Lascon also notes notes that plaintiff plaintifT!estified none testified hcr deposition deposition that as she shc was descending descending the subject subject stairs, stairs, she only saw water watcr on the at her after she fell allegedly allcgedly observed observed ice. Lascon Lascon also notes notes that the non-party non-party stairs and after building engineer. engineer, Eric Gordos, Gordos, testified testified at his deposition deposition that he came came upon upon plaintiff plaintiff building shortly after after the accident, accident, observed observed no ice on the stairs, and took took photos photos of of the subject subject stairs, stairs, shortly which he contends contends reveal reveal no ice, but merely merely the salt. In addition, addition, Lascon Lascon contends contends that, which regardless, there there is no evidence evidence that Lascon Lascon caused caused or created created the subject subject condition condition or had regardless, constructive notice notice of of the subject subject condition. condition. actual or constructive settled that that a contractual contractual obligation obligation will not generally generally give give rise to tort It is well settled liability to a third party with three exceptions: exceptions: "(1) "( I) where where the contracting contracting party, party, in failing liability exercise reasonable reasonable care carc in the performance performance of of his duties, duties, launches launchcs a force forcc or instrument instrument to exercise of harm; (2) where where the plaintiff plaintiff detrimentally detrimentally relics on the continued continued performance performance of of the of contracting party's party's duties; duties; and (3) where where the contracting contracting party party has entirely entirely displaced displaced the contracting other party's party's duty to maintain maintain the premises premises safely'' saCely" (Espinal (Espinal v Melville Snow Contractors, Contractors, other Melville Snow Inc., 98 NY2d NY2d 136. 136, 140 120021, 12002J, internal internal citations citations and quotation quotation marks marks omitted). omitted). Here, Lascon has failed to demonstratc,primafacie, demonstratc,prima/aeie, performance of of snow snow and ice icc removal removal Lascon that its perfonnance amount to the "launchling"I "launchlingl ofa ofa force or instrument instrument of of harm." harm." The Court Court notes that did not amount submitted photographs. photographs, in their thcir attached attached quality. quality, do not demonstrate demonstrate the absence absence of of the submitted icc on the subject subject stairs. In addition, addition, Lascon Lascon has failed to demonstrate, demonstrate, prima prima snow and ice 2 [* 2] 2 of 4 FILED: WESTCHESTER COUNTY CLERK 06/29/2017 04:54 PM NYSCEF DOC. NO. 211 INDEX NO. 52799/2017 RECEIVED NYSCEF: 06/29/2017 entirely displace duty to address address the snow snow and/or and/or ice facie, that that it did not entirely displace Mack-Cali's Mack-Cali's duty conditions on the Premises. Accordingly, Lascon's summary judgment Lascon's motion motion for -summary judgment is conditions Premises. Accordingly, denied. In support support of of their motion, Mack-Cali various. evidence evidence and contends, their motion, Mack-Cali proffers proffers various. contends, among other other things, of the among things, that SW LP and Sub XIV had no jural jural existence existence on the date of accident and M-C did not jJosscss control the Premises Premises on the date of of accident. accident. In accident possess or control addition, Mack-Cali contends that its contract contract with Lascon entirely displaced displaced its snow snow and addition, Mack-Cali contends Lascon entirely ice removal obligations and, regardless, evidence that Mack-Cali caused or Mack-Cali caused removal obligations regardless, there there is no evidence created the subject subject condition condition or had actual or constructive notice of of the subject subject condition. condition. created ~onstructive notice In opposition, opposition, plaintiff among other other things, affidavit from Lavelle Lavelle Cook, Cook, a coplaintiff proffers, proffers, among things, an affidavit worker ofplaintiffwho of plaintiff who avers that complaint to Mack-Cali Mack-Cali about worker that she had made made a verbal verbal complaint about icy conditions at the subject subject location location at least three three hours accident and that when conditions hours prior prior to the accident that when came upon plaintiff after the accident, 'accident, there there was still ice at the subject subject location she came plaintiff after location and no averred that Mr. Gordos Gordos took took no photographs of the subject subject stairs stairs at salt. Ms. Cook also averred photographs of this time. It is well settled settled that that "[t]o "[t]o demonstrate demonstrate its entitlement entitlement to summary summary judgment judgment in a slip-and- fall case, a defendant defendant must establish, prima create the slip-and-fall must establish, prima facie, that it did not create condition that allegedly caused caused the fall, and did not have have actual actual or constructive constructive notice of condition that allegedly notice of that condition condition for a sufficient sufficient length of time (Molloy v Waldbaum, Inc., 72 length of time to remedy remedy it" (Molloy AD3d 659, 659-60 201 0]). Here, Herc, plaintiffhas plaintiff has succeeded AD3d 659-60 [2d Dept Dept 2010]). succeeded in raising raising a triable triable issue of fact as to whether SWRA LLC had actual or constructive of the subject subject condition condition of whether SWRA constructive notice notice of s~fficient length of of time to remedy failed to raise of for a sllfficient remedy it. Plaintiff Plaintiff has failed raise a triable triable issue of Premises. fact as to whether whether SW LP, Sub XIV, and M-C had any duty vis-a-vis vis-a-vis the Premises. Accordingly, SWRA LLC's summary judgment denied and the motion for LLC's motion motion for summary judgment is denied _the motion Accordingly, SWRA summary judgment summary judgment filed by SW LP, Sub XIV, and M-C is granted. granted. scheduled for a Setth:~ment Settlement Conference Conference on August 2017 at 9: 15 IS a.m. This matter matter is scheduled August 8, 2017 Courtroom 1600 at the Westchester County Courthouse, Courthouse, 111 I II Dr. Martin in Courtroom Westchester County Martin Luther Luther King King Jr. Boulevard, Plains, New Boulevard, White White Plains, New York. ,li, Ji, Dated: June Dated: 2017 · White Plains, Plains, New New York White York '~>1JJj~. HON ORAZIO R. BELLANTONI Justi of of the Supreme Supreme Court Court 3 [* 3] 3 of 4 FILED: WESTCHESTER COUNTY CLERK 06/29/2017 04:54 PM NYSCEF DOC. NO. 211 1111 ... INDEX NO. 52799/2017 RECEIVED NYSCEF: 06/29/2017 ,. MARK EDWARD EDWARD GOLDBERG GOLDBERG MARK Attorney for Plaintiff Attorney Plaintiff Street 130 North North Main Main Street Port Chester, Chester, NY NY 10573 l 0573 WECHSLER COI-IEN, LLP WECHSLER & COHEN, Attorneys for Defendimts Inc. Attorneys Defendants Cali So. West West Realty Realty Associates Associates L.P., L.P., Mack-Cali Mack-Cali Sub XIV, lnc. f/n/a Cali Sub XIV, fin/a XIV, Inc., Maek~CaJi Mack-Cali Realty Realty Corporation, Corporation, and Mack-Cali Mack-Cali So. West Realty Associates Associates L.L.C. L.L.C. 17 17 State St. N cw York, NY 110004 0004 New MARTYN TOHER TOHER MARTYN MARTYN MARTYN & ROSSI ROSSI Attorneys Attorneys for Defendant Defendant Lascon Lascon Inc. Country Road, Suite Suite 211 330 Old Country Mineola, 1150 I Mineola, NY 11501 .-- ·--- 4 [* 4] 4 of 4

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