Fontana v TJX Cos., Inc.

[*1] Fontana v TJX Cos., Inc. 2017 NY Slip Op 50126(U) Decided on February 3, 2017 Supreme Court, Queens County Modica, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 3, 2017
Supreme Court, Queens County

Gina L. Fontana, Plaintiff,

against

The TJX Companies, Inc. d/b/a TJ MAXX, LAURENCE E. BALFUS, and USM, INC. d/b/a U.S. MAINTENANCE, and MILLENIUM CLEANING, INC., Defendants.



80/2015



Appearances of Counsel:

For Plaintiff: WeitzPascale, by Brian C. Pascale, Esq., 221 Mineola Boulevard, Mineola, N.Y. 11501

For Defendant USM, INC. S/h/a USM, INC. D/b/a U.S. MAINTENANCE: London Fischer LLP, by Erin Rieu-Sicart and Daniel Zemann Jr., Esqs., 59 Maiden Lane, New York, N.Y. 10038

For Defendants THE TJX COMPANIES d/b/a TJ MAXX: McAndrew, Conboy & Prisco, by Mary C. Azzaretto, Esq., 1860 Walt Whitman Road, Melville, N.Y. 11747

For Defendant LAURENCE C. BALFUS: The Law Offices of Kevin M. McGowen, 1325 Franklin Avenue, Garden City, N.Y. 11530

For Defendant MILLENIUM CLEANING: Miranda Sambursky Slone Sklarin, 240

Mineola Boulevard, Mineola, N.Y. 11501
Salvatore J. Modica, J.

The following papers numbered 1 to 15 read on this motion by defendant USM, Inc. d/b/a U.S. Maintenance ("USM") for summary judgment dismissing the complaint and all cross claims against it or, in the alternative, to sever the claims against USM, defendant The TJX Companies, Inc. d/b/a TJ Maxx ("TJ Maxx"), and defendant Millenium Cleaning, Inc. ("Millenium") from the claims against defendant Laurence E. Balfus ("Balfus") pursuant to CPLR 603.

Papers Numbered

Notice of Motion - Affidavits - Exhibits 1 - 4

Answering Affidavits - Exhibits 5 - 9

Reply Affidavits 10 - 15

Upon the foregoing papers, it is ordered that the motion is determined as follows:

This action arises out of two separate accidents from which plaintiff seeks to recover damages.

First, on October 13, 2013, at approximately 5:30 p.m., plaintiff was allegedly injured when she slipped and fell on water in the bathroom of a TJ Maxx department store located at 90 Northern Boulevard in Greenvale, New York.

TJ Maxx had entered into a contract with USM, which, in turn, subcontracted with Millenium, to perform cleaning services at several store locations, including the subject premises.

Second, on May 9, 2014, plaintiff was allegedly injured in a motor vehicle accident involving Balfus. Plaintiff subsequently commenced the within action against defendants, alleging that USM, TJ Maxx, and Millenium were negligent in the ownership and maintenance of the subject department store, and that Balfus was negligent in the operation of his motor vehicle.That branch of USM's motion for summary judgment dismissing the complaint against it is denied. Since a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party (see, Espinal v Melville Snow Contrs., 98 NY2d 136, 137 [2002]).

In this case, any duty USM had with respect to the maintenance of the subject department store arose exclusively out of its contract with TJ Maxx. In support of its summary judgment motion, USM argues that it does not owe a duty to plaintiff because its contract with TJ Maxx obligated USM to perform cleaning services only during certain limited hours. Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party (see, Church v Callanan Indus., 99 NY2d 104, 111 [2002]).

However, there are three exceptions to this general rule, in which a duty of care to third parties may arise out of a contractual obligation or the performance thereof, including (1) where a contracting party launched a force or instrument of harm while failing to exercise reasonable care in the performance of a contractual duty, (2) where the injured party detrimentally relied upon the contracting party's continuing performance of a contractual obligation, or (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely (see, Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d 253, 257 [2007]; Barone v. Nickerson, 140 AD3d 1100, 1101 (2nd Dept. 2016)

The second exception is inapplicable under the circumstances of this case because there is no evidence demonstrating that plaintiff detrimentally relied on the performance of USM's duties under its contract with TJ Maxx.

The third exception is also inapplicable here because it is undisputed that USM did not entirely displace TJ Maxx's duty to maintain the store in a reasonably safe condition because the contract between USM and TJ Maxx required USM to perform cleaning services only between 7:00 a.m. and 10:30 a.m. and TJ Maxx was responsible for maintaining the premises after that period of time. Nevertheless, USM failed to make a prima facie showing as to whether it launched a force or instrument of harm which created or exacerbated the alleged dangerous condition of water on the bathroom floor that caused plaintiff's accident. See, Espinal v. Melville Snow Contrs., 98 NY2d 136, 140 [2002]; Sears v. S3 Tunnel Const. AJV, 140 AD3d 474, 474 (1st Dept. 2016) (MTA failed to establish prima facie that it owes no duty to plaintiff because neither it nor its contractors launched a force or instrument of harm in performing their contractual duties); Perry-Renwick v. Giovanni Macchia Landscaping & Gardening, Inc., 136 AD3d 772 (2nd Dept. 2016) (snow removal company under oral agreement with hospital to remove snow from garage failed to demonstrate, prima facie, that it did not create or exacerbate a dangerous condition and, thus, launch a force or instrument of harm, on motion for summary judgment in hospital employee's personal injury action seeking damages for injuries she allegedly sustained [*2]when she slipped and fell on a large patch of ice on roof level of hospital's garage); see also, Arana v. Kish, 144 AD3d 616, ____ (2nd Dept. 2016) ("Here, the Patterson defendants established, prima facie, that they did not launch a force or instrument of harm, and the plaintiffs failed to raise a triable issue of fact in that regard. Further, the plaintiffs do not allege that they detrimentally relied on the continued performance of the Patterson defendants' duties. However, the Patterson defendants failed to meet their prima facie burden of establishing that they had not entirely displaced the decedent's duty to maintain the premises safely"); see generally, 610 W. Realty LLC v. Riverview W. Contracting LLC, ____A.D.3d _____, 2017 WL 21575, at *1, 2017 NY Slip Op. 00028 (1st Dept. 2017).

In particular, USM did not tender any competent evidence demonstrating that the subcontractor, Millenium, did not negligently perform cleaning services between 7:00 a.m. and 10:30 a.m. at the subject store on the date of the accident. Significantly, the affidavit of Joseph Persico, USM's key account manager, does not offer specific details about the cleaning services provided by USM and/or Millenium on the date of the accident. Given that USM failed to meet its prima facie burden, the sufficiency of the opposition papers on the issue of liability need not be considered (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

That branch of USM's motion to sever plaintiff's claims against USM, TJ Maxx, and Millenium from the claims against Balfus pursuant to CPLR 603 on the ground that the action involves two, distinct accidents and liability issues resulting in jury confusion is denied. CPLR 603 provides, in relevant part, "[i]n furtherance of convenience or to avoid prejudice the court may order a severance of claims, or may order a separate trial of any claim, or of any separate issue."

Here, while it is true that plaintiff was involved in two separate accidents, seven months apart, plaintiff complains of similar injuries to the same body parts in each accident. Significantly, Balfus alleged in his answer a cross claim that plaintiff's injuries were caused by the negligence of USM, TJ Maxx, and Millenium, and Millenium alleged in its answer a cross claim that plaintiff's injuries were caused by the negligence of Balfus. A claim by the defendant in one of the actions that the plaintiff's injuries were caused by the negligence of the defendant in the other action mandates that the two actions should be tried together, absent a particularized showing of prejudice (see, Witherspoon v New York City Hous. Auth., 238 AD2d 276 [1st Dept 1997] (joint trial of actions, in which one defendant claimed that injuries were caused by negligence of defendant in other action, was proper, as no threat of jury confusion or other prejudice had been demonstrated); Richardson v Uess Leasing Corp., 191 AD2d 394 [1st Dept 1993]). Furthermore, USM, TJ Maxx, and Millenium have not sufficiently demonstrated that prejudice would result in the absence of severance. See, CPLR 603; Sumi Chuang Yeh v. Leonardo, 134 AD3d 695 (2nd Dept. 2015) (severance of third-party action commenced by defendants against insurer from main action brought by plaintiff against defendants, alleging that her property suffered damage as a result of defendants' negligence in maintaining their retaining wall, was not warranted; the main action and third-party action involved common factual and legal issues, single trial would not result in prejudice to insurer).

Accordingly, the Court denies the defense motion in all respects.

The foregoing constitutes the decision, order, and opinion of the Court.

Dated: Jamaica, New York

February 3, 2017

Honorable Salvatore J. Modica

J.S.C.