Kulp v City of New York

[*1] Kulp v City of New York 2008 NY Slip Op 50378(U) [18 Misc 3d 1140(A)] Decided on February 15, 2008 Supreme Court, New York County Feinman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through March 3, 2008; it will not be published in the printed Official Reports.

Decided on February 15, 2008
Supreme Court, New York County

Evelyn Kulp, Plaintiff,

against

The City of New York, Broad Creek Associates, Sarakreek Management and National Restaurant Management and Roy Rogers Restaurants, Defendants. Broad Creek Associates, Sarakreek Management, Third-Party Plaintiffs, Collins Building Services, Inc.,Third-Party Defendant.



591266/1998



For Plaintiff:

David L. Kremen, Esq.

Oshman & Mirisola, LLP

42 Broadway, 10th Floor

New York NY 10004-1617

(212) 233-2100

For City of New York:

Michael A. Cardozo, Esq.

Corporation Counsel of City of N.Y.

By: Susan Kalnitzky, Esq.

100 Church St.

New York, NY 10007

(212) 788-8864

For Broad Creek & Sarakreek:

Glen E. Wertheimer, Esq.

Hardin, Kundla, McKeon & Poletto, P.A.

110 William St.

New York, NY 10038

(212) 571-0111

For National Rest. & Roy Rogers:

James E. Romer, Esq.

Marks, O'Neill, O'Brien & Courtney, P.C.

530 Saw Mill River Rd.

Elmsford, NY 10523

(914) 345-3701

Paul G. Feinman, J.

In motion sequence number 003, National Restaurant Management ("National") and Roy Rogers Restaurants ("Roy Rogers") move pursuant to CPLR 3212 for summary judgment and dismissal of all claims, cross-claims, and counterclaims. Plaintiff opposes. Broad Creek Associates ("Broad Creek") and Sarakreek Management ("Sarakreek") partially oppose, arguing that they are entitled to indemnification by their tenant, Roy Rogers based on the terms of their [*2]commercial lease agreement.

In motion sequence number 004, Broad Creek and Sarakreek move pursuant to CPLR 3212 for summary judgment and dismissal of the complaint, all cross-claims with prejudice, and for summary judgment as against National and Roy Rogers. Plaintiff opposes. National and Roy Rogers partially oppose arguing that there are questions of fact regarding issues of indemnification.

At a July 18, 2007 appearance related to motion sequence numbers 003 and 004, the Court issued an interim order advising the parties that the entire record would be searched and summary judgment would be considered as to all parties. The order permitted additional submissions to be filed by July 26, 2007. The defendant City of New York submitted its papers seeking summary judgment in its favor by order to show cause dated July 26, 2007 (motion sequence number 005) and plaintiff was given additional time to serve opposition papers, which were filed on September 12, 2007.

For the reasons which follow, summary judgment is granted in its entirety in favor of National and Roy Rogers Restaurants (motion sequence number 003). The remaining parties' motions for summary judgment are denied (motion sequence numbers 004 and 005).

Factual Allegations

On January 19, 1996, during her lunch hour, plaintiff slipped on a patch of ice on the northern side of Park Place, in the City and County of New York. The sidewalk abuts the premises known as 239/250 Broadway. Plaintiff had walked on the same sidewalk, but closer to the buildings when she left her office, and had not noticed any snow or ice on the sidewalk (Broad Creek Mot. Ex. H [hereinafter Kulp EBT] 21). The sidewalks all were wet (Pl. Aff. in Opp. Ex. B [hereinafter Kulp 50-h Hearing], at 11: 6-7). On her return to the office, plaintiff chose to walk closer to the curb in order to move around the sidewalk crowd (Kulp EBT 25). She did not see the ice patch before she stepped on it (Kulp EBT 26). As she slipped, she tried to regain her balance and "probably took at least two steps" (Kulp EBT 30). Her upper body fell into the street, with her knee hitting the curb (Kulp EBT 30). She was pulled back onto the sidewalk (Kulp EBT 106). She saw, after she fell, that she was lying on "ridges of what appeared to be snow, partially melted." (Kulp 50-h Hearing, at 11; 9-10). The ice looked "like a ridge of snow or ice or slush not quite to the curb" (Kulp EBT 28-29). "It looked like . . . somebody had shoveled snow and stopped and didn't take it all the way." (Kulp EBT 30). According to 1996 testimony at the 50-h hearing, she fell in front of a Roy Rogers (Kulp 50-h Hearing, 3). At her deposition conducted in December 2005, she "believed" she was in front of the Roy Rogers (Kulp EBT 106). She also remembered hearing Police Officer Adamski state to someone who she presumed to be the manager of the Roy Rogers restaurant that someone had fallen on his property and that he needed to clear his sidewalks (Kulp EBT 128-129).

Sheikh Zaforullah testified on behalf of National and Roy Rogers (Nat. Rest. Mot. Ex. H [hereinafter Zaforullah EBT]). Zaforullah was the general manager of the Roy Rogers located at 250 Broadway in January 1996 ( Zaforullah EBT 8). He testified that building employees took care of the sidewalks outside the building ( Zaforullah EBT 13, 15). His store also had shovels and salt on the premises ( Zaforullah EBT 15). The shovels and salt were to take care of any snow or ice that came inside the revolving door or any other door, and for an "emergency" (Zaforullah EBT 16, 17, 27). He did not recall anyone ever using the shovel (Zaforullah EBT 28). Any snow that was tracked in was melted with salt and was mopped up (Zaforullah EBT [*3]32, 38-39).

Testifying on behalf of Broad Creek and Sarakreek was Thomas Gruja, the building manager at 250 Broadway in January 1996; he worked for Broad Creek for about 17 years (Broad Creek Not. of Mot. Ex. I [hereinafter Gruja EBT], 12). Gruja was in charge of five persons in January 1996: a chief engineer and four engineers (Gruja EBT 15-16). Their duties were to handle complaints and run the building (Gruja EBT 17). They did not remove snow and ice from the sidewalks and neither he nor his engineers ever performed snow removal (Gruja EBT 30, 51). Collins Building Services was contracted to perform that service along with other cleaning services (Gruja EBT 31, 47-48). Gruja made sure there was de-icer in the building for use on the sidewalks (Gruja EBT 36). When snow fell, one or more Collins employee, depending on the severity of the storm, would shovel and put down de-icer, starting at the front of the building and going around the side; their work would "continue[] all day depending on the severity of the storm" (Gruja EBT 36, 37). They were to shovel the snow to the curb (Gruja EBT 40). Where snow was plowed up onto the sidewalk by the City of New York, Collins put it back into the street (Gruja EBT 40). Gruja inspected the work performed by Collins (Gruja EBT 34). This included "[w]alk[ing] around the whole building and check[ing] it" on an ongoing basis (Gruja EBT 38).

Collins Building Services produced Eddy Jajaga, a cleaning supervisor, for deposition (Nat. Rest. Mot. Ex. J [hereinafter Jajaga EBT], 7). Jajaga testified that Gruja was the only person from the building with whom Jajaga had dealings (Jajaga EBT 25). Gruja inspected the work of Collins employees (Jajaga EBT 17). Gruja "always" inspected the snow removal work done (Jajaga EBT 14). Collins employees would put down salt and shovel snow to the curb; Gruja did not remember if the snow was shoveled into the street (Jajaga EBT 27, 28). "Anytime" there was snow sticking to the sidewalk, Collins employees would shovel (Jajaga EBT 29). Jajaga was provided with a job description by Collins when he commenced work, and there were written rules and guidelines; the porters did not get written rules (Jajaga EBT 39).

The "Cleaning Specifications" described by Collins Building Services for 250 Broadway specifies on page 8, that it would "Remove snow and ice as soon as possible from all sidewalks." (Broad Creek Not. of Mot. Ex. J).

The New York City Department of Sanitation's Brian Howard testified concerning the City's practice as to roadway cleaning in January 1996 (Pl. Aff. in Opp. Ex. K [hereinafter Howard EBT]). Sanitation workers would plow the streets (Howard EBT 10). They would also remove snow from fire hydrants, and shovel crosswalks and bus stops, as well as a path on the sidewalk "corner caps" so that pedestrians could walk on and turn from one sidewalk to another (Howard EBT 11, 12). It was not the practice of the City ever to salt the sidewalks (Howard EBT 14).

Both plaintiff and the City of New York proffer documents from the National Climatic Data Center, U.S. Department of Commerce, to show the climate conditions existing in New York City at and near the date of plaintiff's accident (Pl. Aff. in Opp. Ex. L; City Mot. Ex. C). According to the affidavit of Meteorological Evaluation Services, Inc.'s senior consulting meteorologist Mark L. Kramer, on January 7-8, 1996, the records show that a total of more than 20 inches fell in Central Park (Pl. Aff. in Opp. Ex. M [hereinafter Kramer Aff.], ¶ 9). Between one and two more inches of snow and frozen precipitation fell on January 12 and 13 and thereafter no additional precipitation fell prior to noon on January 16 (Kramer Aff. ¶ 12). On [*4]January 14, the two New York City airports measured 13 and 14 inches of snow (Kramer Aff. ¶ 16). On January 16, local airports continued to 9 or 10 inches of snow, as well as ice pellets or ice on well-exposed, undisturbed, chemically untreated ground surfaces (Kramer Aff. ¶ 20). Beginning on January 12, the air temperatures for at least parts of the days rose above freezing; on January 15, temperatures reached over 40 degrees during the day but fell below freezing in the early evening (Kramer Aff. ¶¶ 12-17). On January 16, temperatures remained below freezing in the morning hours and at about 11:50 a.m., it was about 25 or 26 degrees Fahrenheit (Kramer Aff. ¶ 19). It was the professional opinion of Kramer that if there was any natural snow or ice pellets on undisturbed ground surfaces at noon on January 16, 2006, such condition was from the storm of January 7-8 and to a lesser extent the snow/ice pellet accumulation that occurred on January 9, 10, 12, and 13 (Kramer Aff. ¶ 21).

Legal Analysis

Summary judgment is proper when there are no issues of triable fact (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]). Issue finding rather than issue determination is its function (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395 [1957]). The evidence will be construed in the light most favorable to the one moved against (Weiss v Garfield, 21 AD2d 156 [3rd Dept 1964]). "Where the court entertains any doubt as to whether a triable issue of fact exists, summary judgment should be denied." (Daliendo v Johnson, 147 AD2d 312 [2d Dept 1989]).

Where a movant has demonstrated its entitlement to summary judgment, the burden of opposing such a motion is to demonstrate by admissible evidence the existence of a material issue of fact requiring a trial (Zuckerman v City of New York, 49 NY2d 557, 563 [1980]). Bare conclusory allegations are insufficient to defeat a motion for summary judgment (see, Thanasoulis v National Assn. for the Specialty Foods Trade, Inc., 226 AD2d 227 [1st Dept 1996]; Lee v Weinstein, 116 AD2d 700 [2d Dept], lv denied 68 NY2d 601 [1986]). It is insufficient to offer suspicions, surmises, and unsubstantiated allegations (Zuckerman v City of New York, at 557).

To establish a prima facie case of negligence, plaintiff must demonstrate (1) that defendant owed her a duty of reasonable care, (2) there was a breach of that duty, and (3) she suffered a resulting injury proximately caused by the breach (see, Boltax v Joy Day Camp, 67 NY2d 617 [1986]). The threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party (Espinal v Melville Snow Contractors, Inc., 98 NY2d 136, 138 [2002]). It is the Court's responsibility to determine whether there is a duty, and "involves a very delicate balancing of such considerations as logic, common sense, science, and public policy" (Blye v Manhattan & Bronx Surface Transit Oper. Auth., 124 AD2d 106, 108 [1st Dept. 1987], aff'd 72 NY2d 888 [1988], citing Bovsun v Sanperi, 61 NY2d 219, 228 [1984]; De Angelis v Lutheran Med. Center, 58 NY2d 1053, 1055 [1983]). Negligence cases, by their nature, do not normally lend themselves to summary dismissal since the question of negligence, even if the parties agree as to the underlying facts, is a question for jury determination (Villoch v Lindgren, 269 AD2d 271, 273 [1st Dept 2000], citing McCummings v New York City Tr. Auth., 81 NY2d 923, 926 [1993], cert. denied sub nom. New York City Trans. Augh. v McCummings, 510 U.S. 991 [1993]).

The law in New York City at the time of plaintiff's accident generally provided that it was the duty of the municipality to keep its sidewalks reasonably safe and reasonably free from [*5]snow and ice and it could be held liable for the negligent failure to do so (Schlausky v City of NY, 41 AD2d 156, 157-158 [1973]). However, it must appear that there was negligence in permitting the accumulation and that a dangerous condition was created and permitted to exist for such a period as would reasonably have afforded an opportunity to remedy the condition (Schlausky, at 158).

At the time of plaintiff's accident, an abutting landowner had no duty to the public to remove naturally accumulated snow and ice, and would not be liable in tort for injuries sustained by pedestrians who slipped and fell on sidewalks with naturally accumulated ice or snow (Gerber v City of NY, 280 AD2d 289, 289 [1st Dept. 2001]). However, where the landlord attempted to remove the snow and ice and made the condition more hazardous, it could incur liability (Gerber, 289 AD2d at 290). The landlord was required to exercise reasonable care when undertaking the cleaning of a sidewalk of snow, or be held liable in negligence where its acts created or increased the hazard inherent in ice and snow on city sidewalks (Glick v City of NY, 139 AD2d 402, 403 [1st Dept. 1988] [citing Greenberg v Woolworth Co., 18 Misc 2d 141, 143-144 [Sup. Ct. NY County], aff'd 10 AD2d 567 [1st Dept.], lv denied 7 NY2d 711 [1960]).

Where the situation involves snow and ice, a landowner will not be held liable unless it has notice of the defect or, in the exercise of due care, should have had notice, and had a reasonably sufficient time from the end of the storm to remedy the condition caused by the elements (Simmons v Metropolitan Life Ins. Co., 207 AD2d 290, 291 [1st Dept.], aff'd 84 NY2d 972 [1994]). A failure to get all of the ice or snow off of a sidewalk is not negligence unless there is an affirmative act of fault that increases the hazard (see, Schlausky v City of NY,, 41 AD2d at 158, citing Herrick v Grand Union Co., 1 AD2d 911 [3d Dept. 1956]). Whether a defendant's activity created a more hazardous condition than would have obtained had the snow been left untouched or handled in another manner, is one for the trier of fact to resolve (see, Rector v City of NY, 259 AD2d 319, 320, 321 [1st Dept. 1999], citing Glick v City of NY, 139 AD2d at 403; Nevins v Great Atl. & Pac. Tea Co., 164 AD2d 807, 808 [1st Dept. 1990]).

Motion by National and Roy Rogers (Motion Sequence Number 003)

There is no evidence presented that National and Roy Rogers owed a duty of care to plaintiff. None of the testimony establishes that Roy Rogers was obligated to care for the sidewalks outside its store, or that it did in fact do any sort of maintenance of the sidewalks, including clearing of snow and ice. In addition, plaintiff's testimony is only that she was in front of Roy Rogers after she fell, but she does not establish where the ice patch upon which she slipped was situated.

Broad Creek's contention that it is entitled to indemnification from Roy Rogers based on the terms of their lease agreement is premised on a misapplication of the relevant lease term. The lease states, in pertinent part, that the landlord and its agents will not be liable "for any injury . . . to persons . . . resulting from any cause of whatsoever nature, unless caused by or due to the negligence of Landlord, its agents, servants, or employees." (Not. of Mot. Ex. L, Contract Art. 14.A). Here, where the evidence shows that the snow removal was undertaken by Collins Building Services, which was hired by the landlord and supervised by landlord's employee, and where the extant record is devoid of evidence of any negligence by the tenant Roy Rogers, the lease term seeking to protect the landlord from the actions of the tenant is inapplicable.

Accordingly, the motion by National and Roy Rogers for summary judgment and dismissal of the complaint and all cross-claims and counterclaims, is granted.

[*6]Motion by Broad Creek and Sarakreek (Motion Sequence Number 004)

Broad Creek argues that there is nothing to show that it caused or created the snow condition or that they had notice of its existence. The affidavit by the meteorologist establishes that snow and ice on city sidewalks on January 16, 1996 could be presumed to have come from one of the storms endured by the city in the ten days prior to plaintiff's accident.[FN1]It is well settled that where a condition continues for some period of time, there is a jury question as to whether the defendant knew or should have known of the existence of the condition (Taylor v Bankers Trust Co.., 80 AD2d 483, 487 [1981]). Gruja's March 2007 affidavit stating that he was unaware of any complaints about or accidents on the sidewalk, or not aware of any ice and snow on the sidewalk prior to plaintiff's accident (Broad Creek Not. of Mot. Ex. K), is self-serving and must be evaluated by the trier of fact at trial.

Testimony establishes that Broad Creek employed Collins Building Services to promptly shovel and de-ice the sidewalks abutting its property at 250 Broadway. Although a party who retains an independent contractor, as distinguished from an employee or servant, is not liable for the independent contractor's negligent acts, this is only true where the one who employs the independent contractor has no control over the manner in which the work is done (Kleeman v Rheingold, 81 NY2d 270, 271-272 [1993]). Here, Broad Creek's building manager, Thomas Gruja, testified that he oversaw the work done by Collins workers and regularly inspected the work. Collins' Jajaga confirmed that Gruja inspected the work of the Collins employees. The delegation by Broad Creek/Sarakreek of the duty of cleaning the sidewalks to Collins does not absolve them of liability (Park v Caesar Chemists 245 AD2d 425, 426 [2d Dept. 1997], citing Kotopoulos v Nathan Hale Gardens, 235 AD2d 276 [1st Dept. 1997]; Farrell v Prentice, 206 AD2d 799 [3d Dept. 1994]). Whether the shoveling of the sidewalks by the Collins employees created a hazardous condition, is a question for the trier of fact to resolve (see, Rector v City of NY, 259 AD2d at 320, 321; Suntken v 226 W 75th St., Inc., 258 AD2d 314, 315 [1st Dept. 1999]). Accordingly, the motion by Broad Creek and Sarakreek for summary judgment and dismissal of the complaint and all cross-claims and counterclaims is denied. Motion by the City of New York (Motion Sequence Number 005)

The City argues that it cannot be found liable unless the condition of the sidewalk was unusual or exceptional as compared with the ordinary conditions existing in that locality under the same conditions, and that there lapsed a sufficient time so as to charge the municipality with constructive notice of that condition, citing Gaffney v New York, 218 NY 225, 227 (1916); Williams v New York, 214 NY 259, 264 (1915). It argues that the climatological reports show that on January 16, 1996, there was all-day precipitation consisting of rain and heavy fog, with temperatures below freezing, such that an icy patch could have formed within a short time before plaintiff suffered her fall. This interpretation of the reports differs from that offered by plaintiff's meteorologist, who stated there was no precipitation after January 13, 1996, and concluded that any snow or ice on the sidewalks was the result of the earlier storms. [*7]

The City's witness testified that the Department of Sanitation did not do snow removal from the sidewalks, other than at certain areas not involved under the fact herein. Nevertheless, under the law at the time, the City was responsible for snow removal, and if a property owner failed to clear its sidewalks within a reasonable time, the municipality was to undertake the necessary work (see, Valentine v City of NY, 86 AD2d 381, 387 [1st Dept. 1982], aff'd 57 NY2d 932 [1982]). As of the time Valentine was decided, the shortest time period for which the City had been held liable was 44 hours (Valentine at 388, citing Janota v City of New York, 297 NY 942 [1948]). Because there are questions of fact as to when the ice and snow on which plaintiff fell was created, whether the condition of the sidewalk on January 16, 1996 was unusual or exceptional as compared with other sidewalks in the area, and whether, if the condition existed for several days, the City had constructive knowledge of it, summary judgment must be denied. It is

ORDERED that the motion sequence number 003 seeking summary judgment in favor of defendants National Restaurant Management and Roy Rogers Restaurants is granted and the complaint and all cross-claims and counterclaims are dismissed with costs and disbursements to the defendants as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly; and it is further

ORDERED that the action is severed and continued as against the other parties; and it is further

ORDERED that the motions bearing sequence numbers 004 and 005 seeking summary judgment in favor of defendants Broad Creek Associates and Sarakreek Management and defendant City of New York respectively are denied; and it is further.

ORDERED that the remaining parties are to appear for Mediation before J.H.0. William Leibovitz on April 10, 2008, in Supreme Court, 80 Centre Street, Room 103, New York, NY.

This constitutes the decision and order of the court. The court has mailed copies of this decision to all counsel.

Dated: February 15, 2008_______________________________________________

New York, New YorkJ.S.C. Footnotes

Footnote 1:As noted below, the City's interpretation of the climatological records is that there was precipitation on the day of the accident which, when combined with below-freezing temperatures, could have contributed to the formation of ice within hours of the plaintiff's slip and fall. Thus, whether Broad Creek had actual or constructive notice is a question of fact.