Rao v Citibank

[*1] Rao v Citibank 2006 NY Slip Op 52334(U) [13 Misc 3d 1244(A)] Decided on November 29, 2006 Supreme Court, Richmond County Aliotta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 29, 2006
Supreme Court, Richmond County

Ronald Rao, Plaintiff,

against

Citibank, One Source, Facility Services, Inc. and Golden Plow, LLC d/b/a Golden Plow, Defendant(s).



13021/03

Thomas P. Aliotta, J.

Upon the foregoing papers, the motion (No. 608) for summary judgment dismissing the causes of action asserted against defendant/third-party defendant Golden Plow, LLC (hereinafter "Golden Plow") is granted, as are the cross motions (Nos. 1544 and 2106) for like relief by defendant/third-party plaintiff One Source Facility Services, Inc. (hereinafter "One Source") and co-defendant Citibank; the balance of the motion and cross motions are denied as academic.[FN1]

Plaintiff, Ronald Rao, has brought this action to recover monetary damages for injuries he [*2]allegedly suffered on December 26, 2002, following a slip and fall on snow and ice on a sidewalk adjacent to the Citibank branch located at the intersection of Victory Boulevard and Ganesvoort Boulevard, in Staten Island, New York. As is relevant, in January 2000, defendant Citibank entered into a contract with defendant/third-party plaintiff One Source to provide custodial and cleaning services, including snow removal, at the subject location. Subsequently, One Source orally subcontracted with defendant/third-party defendant Golden Plow to fulfill its snow removal services at this Citibank location. It is undisputed as between One Source and Golden Plow that the latter was to perform snow removal services only after notification by One Source. It is further undisputed that Golden Plow performed snow removal services at this particular Citibank location on the day before plaintiff's fall.

In the present application, Golden Plow is moving for summary judgment as against (1) plaintiff Rao, (2) third-party plaintiff One Source and (3) co-defendant Citibank on its cross claim for indemnification. One Source and Citibank cross-move for summary judgment dismissing the complaint as against them or, in the alternative for summary judgment against Golden Plow on their claims for indemnification.

Summary judgement is a drastic remedy that should not be granted where there is any doubt as to the existence of triable issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Herrin v Airborne Freight Corp., 301 AD2d 500, 505-01 [2d Dept 2003]). In deciding whether summary judgment is warranted, the court's main function is issue identification, not issue determination (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The party seeking summary judgment bears the initial burden of establishing its right to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). In the course of so-doing, " the evidence is to be viewed in a light most favorable to the party opposing the motion, giving [it] the benefit of every favorable inference" (Cortale v Educational Testing Serv., 251 AD2d 528, 531 [2d Dept 1998]). Nevertheless, upon a prima facie showing by the moving party, a party opposing the motion bears the burden of producing "evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action"

(Alvarez v Prospect Hosp., 68 NY2d at 324; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

In actions predicated on ordinary negligence, a threshold question often arises as to whether or not the alleged tortfeasor owes a duty of care to the injured party (see Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]). In this regard, it has been held that

"a contract for the removal of snow and ice does not give rise to a duty on the part of the contractor to exercise reasonable care to prevent foreseeable harm to a plaintiff arising from the negligent performance of such duties unless (1) the contract constitutes a comprehensive and exclusive property maintenance obligation that the contracting parties could have reasonably expected would displace the landowner's duty to safely maintain the property, or (2) there is evidence that the injured [*3]plaintiff detrimentally relied on the contractor's [continued] performance of such duties, or [(3)] the contractor's [failure to exercise due care in the] performance of such duties had . . . advanced to such a point as to have launched a force or instrument of harm" (Mitchell v Fiorini Landscape, 284 AD2d 313, 314 [2d Dept 2001][internal quotation marks and citations omitted]; see Espinal v Melville Snow Contrs., 98 NY2d at 140).

Golden Plow's Motion for Summary Judgment (Motion No. 608)

At bar, Golden Plow alleges that neither its contract with One Source nor any other fact or circumstance in the case charged it with a duty of reasonable care towards the injured plaintiff. In opposition, plaintiff contends that Golden Plow's alleged negligent removal of snow "launched a force of harm" into motion and exacerbated an already dangerous condition by creating a "mound" of snow in the area where plaintiff fell. However, it has been held by the Court of Appeals in similar circumstances that the mere assertion that an alleged tortfeasor acted in a negligent manner or exacerbated a hazardous condition will not suffice as a basis for liability. "By merely plowing the snow, [Golden Plow] cannot be said to have created or exacerbated a dangerous condition" (Espinal v Melville Snow Contrs, 98 NY2d at 142; see Mitchell v Fiorini Landscape, 284 AD2d at 314). Given plaintiff's failure to present any expert or other evidence sufficient to rebut Golden Plow's prima facie showing that it did not create or exacerbate any hazardous or dangerous condition, the complaint as against it should be dismissed.

The Cross Motions for Summary Judgment (Motions Nos. 1544 and 2106)

Somewhat similarly, both One Source and Citibank have cross-moved for summary judgment dismissing the complaint as against them. In the alternative, they have asked this Court to enter an order awarding them summary judgment against Golden Plow on their causes of action for indemnification.

In his complaint against One Source, plaintiff contends, in pertinent part, that the former's contract for the provision of custodial services and snow removal with Citibank constituted a "comprehensive and exclusive property maintenance obligation that the contracting parties could have reasonably expected would displace the landowner's duty to safely maintain the property" (Mitchell v Fiorini Landscape, 284 AD2d at 314). Generally, such an undertaking will be found to exist only where the contracting party has entirely displaced the landowner's duty to maintain the premises in a reasonably safe condition (Espinal v Melville Snow Contrs., 98 NY2d at 141). In resolving this question, our courts have typically looked to circumstantial factors such as (1) which party trains, manages, supervises and directs the support staff associated with daily maintenance (Palka v Servicemaster Management Servs. Corp., 83 NY2d 579, 588 [1994]) and (2) which party is responsible for preventative maintenance, safety inspections and repair (Church v Callanan Indus., 99 NY2d 104, 113 [2002]). [*4]

Here, while One Source has acknowledged its performance of snow removal and other custodial services for Citibank, it has demonstrated prima facie that the nature of its contractual undertaking did not entirely displace Citibank's responsibility to maintain its premises in a reasonably safe condition. For example, the contract between Citibank and One Source does not require One Source to perform any preventative maintenance, safety inspections or repairs. In opposition, plaintiff has failed to present any evidence sufficient to create a triable issue of fact on this issue.

As an alternate ground for recovery, plaintiff asserts that Citibank (through One Source) was negligent in clearing snow and ice from the subject sidewalk, and that this negligence was a proximate cause of his injuries. It is undisputed that plaintiff fell on a sidewalk which abuts an inactive driveway. However, at the time of this accident, i.e., on December 26, 2002, section 7-210 of the Administrative Code of the City of New York still required that the City (rather than adjacent landowners) maintain the sidewalks in a reasonably safe condition. Accordingly, at the time of this accident, an adjoining landowner would not bear any responsibility for plaintiff's injuries unless it created the defect which caused the injury or made a "special use" of the sidewalk in question (see Weiskopf v City of New York, 5 AD3d 202). A special use has been said to occur whenever public property such as a street or sidewalk, has been altered or constructed in such a way as to confer upon the owner a "special benefit" that is unrelated to its public use (see Kaufman v Silver, 90 NY2d 204; D'Ambrosio v City of New York, 55 NY2d 454). In such circumstances, a landowner has been said to owe a duty of care to the general public to maintain the street or sidewalk in a reasonably safe condition (see Kaufman v Silver, 90 NY2d at 207). Nevertheless, such liability will be imposed only where "plaintiff can prove that the special use caused the defective condition and that the special use was a proximate cause of the accident" (Savage v Shah, 297 AD2d 795, 796). Normally, the question of whether or not a special use exists is one of law for the court (see Weiskopf v City of New York, 5 AD3d at 203).

In light of the foregoing, Citibank clearly owed plaintiff no statutory duty of care as of the date of his injuries. Moreover, since plaintiff has been unable to raise a triable issue as to the purported negligence of Golden Plow in removing the snow, a like finding is required as to Citibank. Finally, plaintiff has failed to establish that the special benefit, if any, which Citibank derived from the adjacent driveway bears any discernable nexus to the snow and ice condition which allegedly led to his injuries, or that Citibank's purported special use was proximate cause of the accident (see Savage v Shah, 297 AD2d at 796). In the absence of any triable issues, so much of Citibank's cross motion as is for dismissal of the complaint against it should be granted.

Finally, as regards defendant One Source, in the absence of any evidence that (1) plaintiff relied to his detriment on the snow removal obligation undertaken by it, or (2) the manner or method of performance operated to launch into motion a force or instrument of harm, so much of its cross motion as is for dismissal of the complaint as against it should be granted, as well.

On this view of the case, the balance of the motion and cross motions have been rendered academic. [*5]

It is, accordingly,

ORDERED, that the motion and cross motions for summary judgment are granted and the complaint is dismissed; and it is further

ORDERED, that the balance of the relief requested has been rendered academic; and it is further

ORDERED, that the Clerk enter judgment accordingly.

E N T E R ,

DATED: _____________________________________________________________

THOMAS P. ALIOTTA, J.S.C.

ASN by KD/pt on

AMABILE & ERMAN, P.C.

1000 SOUTH AVENUE

STATEN ISLAND, NY 10314

WHITE & MCSPEDON, P.C.

875 AVENUE OF THE AMERICAS

NEW YORK, NY 10001

MOTOLA KLAR DINOWITZ & CARFORA, LLP

185 MADISON AVENUE, 12TH FL.

NEW YORK, NY 10016

RIVKIN RADLER LLP

EAB PLAZA

UNIONDALE, NY 11556-0111 Footnotes

Footnote 1:The Court acknowledges that One Source has assumed the defense of defendant Citibank, and each has withdrawn so much of its motion (No. 1544) as is against the other.