Reiser v JT 1211, L.P.

Annotate this Case
[*1] Reiser v JT 1211, L.P. 2008 NY Slip Op 51510(U) [20 Misc 3d 1122(A)] Decided on July 14, 2008 Supreme Court, New York County Gische, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 14, 2008
Supreme Court, New York County

Charles T. Reiser, Plaintiff,

against

JT 1211, L.P. and Triangles Services, Inc., Defendants.



590474/06



ATTORNEY FOR THE PLAINTIFF :

Firm: GERALD P. GROSS, 366 PEARSALL AVE., SUITE 5, CEDARHURST, NEW YORK 11516 Phone (516) 371-2800

ATTORNEY FOR THE DEFENDANT :

Firm: CARFORA KLAR PINTER/COGAN LLP, 185 MADISON AVENUE - 12TH FLR. , NEW YORK, NEW YORK 10016 Phone (212) 683-7100

ATTORNEY FOR THE DEFENDANT :

Firm: EDWARD GARFINKEL- LAW OFFICES , 110 WILLIAM STREET-17TH FL. , NEW YORK, NEW YORK 10038 Phone (212) 809-8000

Judith J. Gische, J.

This is an action for personal injuries plaintiff alleges he sustained. There is also a third party action for judgment over, contribution, indemnification and breach of contract. Now before the court are motions by each defendant for summary judgment dismissing plaintiff's complaint against them (motion sequence #1). In addition, the third party plaintiff and third party defendant have each separately moved for summary judgment against the other in [*2]connection with the third party complaint (motion sequence #2).

Issue has been joined by each moving defendant and discovery is complete. The note of issue was filed on August 27, 2007. These motions were brought timely (within 120 days of the note of issue being filed), therefore they will be decided on the merits. CPLR § 3212; Brill v. City of New York, 2 NY3d 648 (2004).

In its prior order dated May 15, 2008, the court consolidated these motions for consideration and disposition. The decision and order of the court is as follows:

Arguments made and facts considered

Plaintiff Charles T. Reiser ( plaintiff") suffered a fractured right patella on the afternoon of January 5, 2005 ( the date of the accident") when he fell on the sidewalk in front of the building located at 1211 Avenue of the Americas, New York, New York ( the building"). Defendant JT 1211, L.P. is the owner of the building ( owner"). The owner's management company, Jamestown Commercial Management Company, LLC (a non-party) ( manager") entered into a Building Services Agreement dated February 16, 2004 ( service agreement") that was in effect on the date of the accident. The service contract is with defendant Triangle Services, Inc. ( Triangle") who agreed to provide building cleaning services, for the benefit of the property." Such services include snow removal, as well as janitorial services. The snow removal provision in the service agreement is as follows:

CONTRACTOR shall remove snow and ice immediately, during and after all storms, from all sidewalks, entrances, and approaches to the premises; remove snow at curbs in front of such entrances ensuring adequate access by vehicles. Remove snow at the street crosswalks ensuring adequate pedestrian access, as and when required, according to OWNER's procedures and direction. CONTRACTOR must provide additional labor if necessary or if requested by building management at no additional expense. Work to be performed as necessary, seven days a week and on holidays. Contractor shall keep snow plows, snow blowers, snow shovels, ice chopping equipment, squeegees and a sufficient supply of ice-melting chemicals during winter season at CONTRACTOR's EXPENSE. Care should be taken against causing damage/erosion to the outside metal by shoveling, plowing or use of ice-melting chemicals."

Discovery is now complete and depositions have been held. The plaintiff has retained an expert who he intends to have testify at trial. This person has prepared a report which has been disclosed. CPLR 3101 (d). Plaintiff contends that this individual (Barry Wachsler) ( Mr. Wachsler") is an expert in the field of snow and ice removal products.

Plaintiff claims that he was injured because defendants misapplied or over applied a snow melting compound called calcium chloride (at times referred to as salt" or ice melt") to the sidewalk in front of the building and that this misapplication or over application caused created a dangerous condition that caused him to lose his footing, slip and fall.

Plaintiff testified at his deposition that as he was walking in the middle of the sidewalk he noticed that it was wet and salted. He testified that he could feel [the salt] under my shoes" and that it was heavy." When asked more questions about the salt, he responded that the granules were large" and translucent," and he could feel them crunching under the soles of his shoes as he walked along 48th Street. Plaintiff did not observe any puddles or snow where he was walking, but noticed that the sidewalk was evenly wet, slick and very smooth." He described [*3]the sidewalk as being natural stone." Plaintiff also described the way his accident happened: I was stepping forward on my left foot and my right foot shot out from underneath me . . . My right knee was a little bent so I went down on my right knee."

Plaintiff's expert opines that based upon my many, many years of experience of educating others in the careful and proper use of snow and ice removal products . . ." the over application of calcium chloride will turn an area into a hazardous slick spot," and that the over application should have been removed using a broom or blower. Failure to do so, according to Mr. Wachsler, will result in an excessive amount of wetness" and cause the pavement" to become excessively wet and slick. He also opines that calcium chloride is hygroscopic which means that [it] draws water to it[self]." He opines that the pavement was excessively wet because the excess ice melt was not cleared away, and that this condition of excess wetness existed for 2-3 hours prior to plaintiff's accident. Plaintiff's expert states that he is familiar with the salt spreader Triangle staff used, and that it was improperly set, or the user improperly trained in its use, which is why the over application of salt occurred in the first place.

Though separately moving, both defendants argue that plaintiff's expert is not qualified to render an expert opinion about whether plaintiff's accident was due to the misapplication of calcium chloride, not only because Mr. Wachsler is not a scientist, but also because plaintiff himself has no idea what caused him to slip and fall. Mr. Wachsler is the principal of a snow removal products company, and in the business of selling these products. Thus, defendants contend he is simply a salesperson, and while he may be familiar with the snow removal business, his opinions are far afield because he did not test the sidewalk, the spreaders, or use any reliable or scientific methods in arriving at his conclusions.

Both defendants also argue that Mr. Wachsler's opinion should not be considered because it is based upon erroneous facts. For example, Mr. Wachsler's initial report is based upon an assumption that Triangle used salt spreaders without salt output control. Mr. Altschuler, Triangle's project manager, has provided his sworn affidavit that Triangle's spreaders do have a flow control mechanism, and that while the setting can be set anywhere between zero and thirty (30), Triangle always keep them set at fifteen (15).

To address this new information, Mr. Wachsler provides a sworn affidavit in support of plaintiff's opposition to Triangle's motion. He opines that even if the spreaders have flow control, the flow was set too high. He also opines that it would be impossible for the flow to have been set at fifteen (15) because so much salt was deposited on the sidewalk. In the alternative, he opines that the porters must have gone over the same area multiple times, and therefore they were improperly trained in the use of the spreaders Triangle used. In his opinion, the flow should have been set even lower than 15.

Triangle contends that it is entitled to summary judgment dismissing the complaint against it because it owed no duty of care to the plaintiff. Triangle argues that its duty to remove snow is strictly contractual, and therefore while it may be answerable to the owner for how well (or not) it fulfilled its obligations under the service contract, Triangle is not liable to plaintiff for the injuries alleged.

Triangle further argues that plaintiff is not the intended third party beneficiary of the service contract between itself and the manager because it was not entered into for plaintiff's benefit, but for the benefit of the property owner, JT 1211. Thus, Triangle contends that plaintiff is, at best, simply an incidental beneficiary of the agreement. [*4]

Triangle denies that it assumed a duty of care simply by taking care of snow removal at the building. Triangle argues that: 1) it reasonably executed its duties (it did not launch a force or instrument of harm"), 2) since plaintiff was not the intended third party beneficiary of the service contract, and did not know its provisions, plaintiff could not have, and therefore did not, detrimentally relied upon how Triangle performed it duties, and 3) in attending to its obligations under the contract Triangle did not entirely displace or absorb the owner's obligations to maintain the premises safely. For the latter argument, Triangle relies upon the terms of the service agreement itself. Triangle argues that it was responsible for snow removal, but the owner and the manager still maintained, and did not defer, the overarching responsibility to maintain a safe premises to Triangle.

Triangle argues that the deposition testimony of the owner's management company, non-party Cushman & Wakefield, establishes that there was significant round the clock security at the building (also known as the FOX News Building). Cushman's director of security, Ed O'Brien testified that there are dozens of security officers and that they are under instructions to report any dangerous condition they may observe while on tour, including snow or ice. The security officers are also instructed to stay on the scene and wait for "French barricades" if they observe a situation. These security officers work for different companies. Some are employees of the owner (JT 1211). Triangle denies having any notice of a dangerous condition, or that any complaints were made to it about a slippery condition at the building. Mr. O'Brien also denies that any complaints were made. However, both Triangle and Mr. O'Brien stated that written reports are not necessarily prepared when something happens.

Like Triangle, the owner agrees that plaintiff's complaint should be dismissed and it relies on many of the same arguments. Thus, like Triangle, the owner argues that plaintiff has no idea what caused him to fall and that the affidavit he now provides, attributing the accident to the over application of calcium chloride, presents a feigned issue of fact. The owner contends there were no complaints of a dangerous condition, and that no one knows how long the wet area on the sidewalk was there. The owner also highlights plaintiff's deposition testimony about other imperfections he observed in the sidewalk after he fell.

The owner, however, separately argues that if the court is not inclined to grant it summary judgment, then Triangle's motion for summary judgment must be denied. JT 1211 argues that Triangle was responsible for snow removal, there is no dispute that Triangle was the only company handling snow removal, and therefore, if the snow removal was done improperly, then it is Triangle's negligence that proximately caused plaintiff's accident. The owner contends that under the service contract, Triangle assumed all responsibility for snow removal and that only Triangle had access to the snow removal equipment at the building which was kept in a locked area.

JT 1211 deposed Keith Altschuler, Triangle's project manager. Mr. Altschuler testified that either he or a foreman would instruct Triangle employees what to do following any snow fall and that to his knowledge, no one else inspected the public sidewalk for hazardous conditions." He testified that security personnel only attend to security matters.

The service agreement contains indemnification and insurance provisions. These provisions are the basis for the third party action by JT 1211 against Triangle ( 3rd party action"). The owner contends that it delegated all responsibility for snow removal to Triangle, but if it is forced to remain in this case, and then found ultimately responsible for plaintiff's injuries, then [*5]its liability is only vicarious, not active. This, it argues, is a reason to grant it summary judgment now because Triangle, and only Triangle, did snow removal. The owner argues further that Triangle breached its service agreement because under section 8.6 of the agreement, Triangle was required, but failed to, obtain insurance for the owner's benefit. JT 1211 contends that Triangle's insurer ( Zurich") has not assumed its defense, nor responded to its letter dated April 9, 2007, tendering its defense.

In addition to denying that it assumed any of the owner or manager's overarching duties to maintain the premises safely (see the more complete discussion of this argument, supra), Triangle contends that it only has to indemnify the owner if it is found negligent. Triangle argues further that it did obtain insurance coverage for the owner's benefit (referring to the Certificate of Insurance that was issued), and that Zurich's non-response is an entirely different issue that is not before the court.

Discussion

A movant seeking summary judgment in its favor must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. " Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). The evidentiary proof tendered, however, must be in admissible form. Friends of Animals v. Assoc. Fur Manufacturers, 46 NY2d 1065 (1979). Once met, this burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980).

I.Triangle's motion for summary Judgment

A.The duty to plaintiff

A necessary element of a negligence action is a legal duty to the injured party. In the absence of a duty, there is no breach and without a breach, there is no liability." Pulka v. Edelman, 40 NY2d 781 rearg den 41 NY2d 901 (1977). Where, as here, a contractor has a contractual duty to provide snow removal services under a service agreement, that contractual duty does not give rise to a duty of care to persons outside the contract. Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136 (2002). However, there are three exceptions to this broad rule of law that will expose the contractor to liability because it has assumed a duty of care to persons outside the contract. Espinal v. Melville Snow Contractors, Inc., 98 NY2d at 139 (citing Palka v. Service Master Mgt. Svcs. Corp., 83 NY2d 579, 585-6 [1990]). The exceptions are where 1) the contractor launches a force or instrument of harm," by first undertaking a task, but then negligently creating or exacerbating a dangerous condition resulting in an injury; 2) the performance of contractual obligations has induced detrimental reliance on continued performance of those obligations; and 3) the contract is so comprehensive and exclusive that the contractor's obligations completely displace and absorb the landowner's responsibility to maintain the premises safely. Espinal v. Melville Snow Contractors, Inc., supra.

Since there is no dispute that Triangle was under a contractual obligation to remove snow from the sidewalks surrounding the building, Triangle owed no duty of care to the plaintiff. Therefore, the issue is whether, as plaintiff (and to some extent JT 1211) claims, Triangle assumed a duty of care by either launching a force of harm" by negligently over applying ice-melt and/or completely displacing and absorbing the owner's obligation to maintain a safe [*6]premises [FN1].

1) Force of harm"

The underpinnings of plaintiff's force of harm" argument are primarily based upon Mr. Wachsler's report and affidavit. Leaving aside the issue of whether or not Mr. Wachsler is an expert" in snow removal, the more important issue is whether the (allegedly) heavy application of calcium chloride was negligence on Triangle's part.

Though Mr. Wachsler opines that spreading too much salt or going over the same area multiple time is a departure from ordinary care" in the use of a snow removal compound, this is a conclusion without any factual basis. The affidavit of an expert must state an opinion, to a reasonable degree of certainty in the field at issue, that the failure to meet certain standards was a substantial factor in causing the relevant incident. It must also delineate the facts and principles underlying the opinion in a manner which permits the court to evaluate its legal sufficiency. Amatulli by Amatulli v. Delhi Const. Corp. 77 NY2d 525 (1991).

Although plaintiff testified that before he slipped he felt a lot of ice-melt crunching under his shoes, and that the sidewalk was wet, he is unsure why he fell. Even assuming the area was heavily salted, Mr. Wachsler's opinion that spreading too much salt is a departure from ordinary care," and therefore negligent, is completely unsupported. Mr. Wachsler did not examine the spreader, or even realize it had a flow valve until Triangle brought its motion. He did not examine the sidewalk where plaintiff fell. Although the expert refers to the sidewalk as being "pavement," the plaintiff and others have testified it is natural stone (granite). Therefore, the expert's report and opinion is insufficient to raise a triable issue of fact and defeat Triangle's motion for summary judgment.

2) Exclusivity"

In deciding whether Triangle assumed duties so broad that it displaced the owner's duty to maintain a safe premises, the court first turns to the building service agreement. It provides that Manager is under contract with Owner to supervise and otherwise cause to be performed the continuing leasing, operation and maintenance of certain building known as 1211 Avenue of the Americas . . . and desires to employ Contractor [Triangle] to provide Building Cleaning Services, for the benefit of the Property. . ." (emphasis in original).

Although Triangle is the only company responsible for snow removal at the building, the service agreement also provides that Triangle is to perform its duties in accordance with the owner's procedures and direction, and that the owner can even request additional staffing, at no expense. Mr. Altschuler, Triangle's project manager, testified at his EBT that he worked closely with Andrew Toland, the general manager of JT 1211's agent (Jamestown). Mr. Altschuler also testified that his staff piled up snow and it was carted away by someone else (a non-party). The staff that spread the snow consisted of porters who also performed other janitorial services. Thus, while Triangle was responsible for supplying the equipment, staff, and supplies to remove snow, ice, etc., the manager and the owner did not cede all control to Triangle, nor did Triangle so dominate these obligations, that it displaced the owner's obligation to maintain a safe premises. To the contrary, Triangle continued to be answerable to the manager and JT 1211 who could provide further instructions on how to complete its obligations under the service [*7]agreement.

B.Third Party Beneficiary

Plaintiff contends that although it is not a party to the contract between the manager and Triangle, he is the third party beneficiary of it. To establish a prima facie claim as a third party beneficiary, the following elements must be present: (1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for his benefit and (3) that the benefit to him is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate him if the benefit is lost." State of California Public Employees' Retirement System v. Sherman & Sterling, 95 NY2d 427, 435 (2000); Edge Management Consulting, Inc. v. Blank, 25 AD3d 364 (1st Dept 2006). The service agreement is for the benefit of the property owner who has to maintain a safe premises. At best, Mr. Reiser is an incidental beneficiary of the service agreement, but not a third party beneficiary.

Since Triangle owed no duty to the plaintiff, and it did not assume a duty to the plaintiff, Triangle has proved it is entitled to summary judgment dismissing the plaintiff's claims against it. Plaintiff has failed to raise any issue of fact to defeat Triangle's motion. Therefore, Triangle's for summary judgment dismissing plaintiff's complaint is granted. The claims by plaintiff against Triangle are dismissed. The other claims against Triangle are addressed later in this decision.

II.JT 1211's motion for summary judgment

A.Plaintiff's complaint

JT 1211 is the owner of the building in front of which the plaintiff slipped and fell. A landowner is under a duty to maintain its property in a reasonably safe condition under existing circumstances, which includes the likelihood of injury to a third party. Perez v. Bronx Park South, 285 AD2d 402 (1st dept 2001). This common law duty is tempered by a requirement that a plaintiff seeking recovery must establish that the landlord created or had actual or constructive notice of the hazardous condition which precipitated the injury. Pappalardo v. Health & Racquet Club, 279 AD2d 134 (1st dept. 2000). To constitute constructive notice, a defect must be visible and apparent, and it must have existed for a sufficient length of time prior to the accident for the owner to have discovered the defect and remedied it. Pappalardo, supra. A party injured by the owner's failure to fulfill it may recover from the owner even though the responsibility for maintenance has been transferred to another. Mas v. Two Bridges Associates by Nat. Kinney Corp., 75 NY2d 680, 687 (1990); Ortiz v. Fifth Ave. Bldg. Assocs., 251 AD2d 200 (1998).

Plaintiff attributes his accident to the conditions on the sidewalk in front of JT 1211's building. While there is testimony that no complaints were made to Triangle, Mr. Altschuler also testified that no report would be written up, even if there was a complaint made. Furthermore, the director of building security testified at his EBT that security personnel were under instructions to report any dangerous conditions they observed while outside, including ice, snow, etc., and if observed, a French" barricade was supposed to be erected until the problem was resolved. Mr. O'Brien also testified that no written report would be prepared, even if a condition was reported.

Plaintiff raises an issue of fact about how long the sidewalk was left with standing water on it, whether that water caused his accident, and whether it was negligent to allow a heavy accumulation of ice-melt (assuming there was in fact a "heavy" application of this compound). [*8]By doing so, plaintiff defeats the motion by the owner to have the plaintiff's complaint against it dismissed. The claims against the owner must be decided at trial. Therefore, JT 1211's motion for summary judgment dismissing the plaintiff's complaint is denied.

B.The 3rd party action

Triangle and JT 1211 each seek summary judgment in connection with the 3rd party action. JT 1211 has set forth four (4) causes of action. They are for indemnification (contractual and common law) and for breach of contract arising from Triangle's alleged breach of contract.

It is undisputed that under its service contract, Triangle is obligated to obtain insurance for the owner's benefit. Triangle has a commercial general liability coverage with Zurich [Policy no GLO 9302698-02]. The policy has an automatic additional insured" endorsement that provides, in relevant part that:

any entity you are required in a written insured contract" (hereinafter called additional insured) to name as an insured is an insured but only with respect to liability arising out of your premises, your work" for the additional insured, or acts of omissions of the additional insured in connection with the general supervision of your work". . .

This is evidence that Triangle has complied with its contractual obligation to obtain insurance for the owner's benefit. Although JT 1211 contends that Zurich has refused to defend it in this action, nor has it disclaimed coverage, Zurich is not a named party. Triangle is granted summary judgment on that cause of action and JT 1211's motion for summary judgment on its breach of contract claim is denied.

The parties agree that the service contract contains an indemnification clause for the owner's benefit. The parties disagree, however, whether those indemnification provisions have been triggered. The indemnification provisions that are in dispute provide as follows:

8.5Indemnification

a)Contractor hereby indemnifies and agrees to pay on behalf of, defend and hold harmless Owner [. . .] from and against all liabilities, claims suits, damages, judgments, costs and expenses [ . . .] including but not limited to attorneys' fees and disbursements, to which the indemnified Party may become subject by reason or arising out of Contractor's negligence or willful malfeasance . . ."

b)Contractor shall protect the Work and all materials which are to be or have been incorporated therein and shall indemnify and hold harmless Owner [. . .][FN2] against all claims any claims, damages, demands, costs, losses, or expenses (including but not limited to attorneys' fees) arising from injuries to or death of persons or loss of or damage to property to the extent resulting from the prosecution of the Work. Contractor shall provide public liability insurance and other insurance [. . .] and shall provide certificates of such insurance to Manager prior to commencement of the Work."

The owner relies on the broad language set forth in 8. 5 (b) ( resulting from the [*9]prosecution of the Work") whereas Triangle relies on the conditional language in 8.5 (a) ( by reason or arising out of Contractor's negligence or willful malfeasance"). Thus, JT 1211 argues that Triangle has to indemnify it for any liability the owner faces - whether or not Triangle is negligent in the happening of the accident - provided the claim arises from Triangle's work under the contract.

Triangle, however, argues that unless it is found negligent, it does not have to indemnify JT 1211. Thus, Triangle relies on section 8.5 (a). Neither party has made any attempt to harmonize or distinguish these, but simply argue that one or the other applies. For the reasons that follow, the court finds the two section can be harmonized, and they are not inconsistent. The court also finds that the owner has not proved it is entitled to indemnification, defense, etc., because the issue of negligence remains to be decided.

Both sections apply to situations, such as the one at bar, where there has been an injury. Both sections obligate Triangle to indemnify the owner (and others). Section 8.5 (b) generally requires that Triangle indemnify the owner for any claims, damages, demands, costs, losses, or expenses (including but not limited to attorneys' fees) arising from injuries or death" and resulting resulting from the prosecution of the Work." Therefore, if Triangle was prosecuting its work under the contract, and there is a claim, etc., then Triangle has to indemnify etc., the owner.

Section 8.5 (a), however, is more specific and therefore a refinement of 8.5 (b). If Triangle is negligent in the prosecution of its work, and the owner is held liable as a result of Triangle's negligence, then Triangle must indemnify the owner. This is classic vicarious liability language. The owner may be legally responsible, but not negligent. Were the court to adopt the owner's interpretation of the indemnification provisions, and find that 8.5 (b) is the applicable indemnification provision to this dispute, this would mean that 8.5 (a) is surplusage, if not meaningless. Thus, the court finds that the more specific language contained in 8.6 (a) is intentional. Although the court has dismissed plaintiff's claims against Triangle, this is because it did not owe, nor did it assume, a duty, of care to the plaintiff. The issues of whether Triangle was negligent still remains to be decided at trial. Until then, the indemnification provision found in section 8.5 (a) is not triggered. Therefore, JT 1211's motion for summary judgment on its indemnification claims is denied as is Triangle's motion for summary judgment dismissing those claims.

Conclusion

Triangle's motion for summary judgment is granted and the plaintiff's complaint against it is dismissed. Triangle's motion for summary judgment on the breach of contract claims against it by JT 1211 is also granted. However, Triangle's motion for summary judgment on the indemnification claims against it by JT 1211 in the third party action is denied.

JT 1211's motion for summary judgment is altogether denied.

Since the note of issue has been filed and this case is ready to be tried, plaintiff shall serve a copy of this decision on the Office of Trial Support so that it may be scheduled.

Any relief requested that has not been addressed has nonetheless been considered and is hereby expressly denied.

This constitutes the decision and order of the court.

Dated:New York, New York

July 14, 2008 [*10]

So Ordered:

_______________________

Hon. Judith J. Gische, J.S.C. Footnotes

Footnote 1:Plaintiff concedes that the detrimental reliance exception in inapplicable.

Footnote 2:There is other language which has been omitted because it is not germane to the issue being addressed and to make the passage more readable.