Mormile v Jamestown Mgt. Corp.

[*1] Mormile v Jamestown Mgt. Corp. 2008 NY Slip Op 52273(U) [21 Misc 3d 1129(A)] Decided on October 29, 2008 Supreme Court, Kings County Balter, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 29, 2008
Supreme Court, Kings County

Dorene Mormile, Plaintiff,

against

Jamestown Management Corporation, JT1211 L.P., Rockefeller Group Development Corp., and Initial Cleaning Services, Inc., Defendants.



7703/04

Bruce M. Balter, J.

Upon the foregoing papers, defendant Initial Cleaning Services, Inc. (Initial) moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint of plaintiff Dorene Mormile (Mormile) and all cross claims of defendants Jamestown Management Corp. (Jamestown), JT1211, L.P. (JT1211), and Rockefeller Group Development Corp. (Rockefeller) (collectively, defendants). Defendants also move for an order, pursuant to CPLR 3212, granting summary judgment dismissing Mormile's complaint and for a further order granting summary judgment on their cross claims against Initial for breach of contract and for a declaration that Initial must defend and indemnify defendants with respect to Mormile's claims in this action.

This personal injury action arises out of an incident that occurred on January 8, 2002 when Mormile allegedly slipped and fell in the lobby of a commercial building at 1211 Avenue of the Americas in Manhattan. At the time of the incident, JT1211 was the owner of the subject premises and Rockefeller Group Development Corp. was the managing agent. Rockefeller entered into an agreement with Initial effective January 1, 2001 to December 31, 2001 wherein Initial agreed to perform various maintenance and cleaning tasks at the premises, which included laying down mats "as necessary" and cleaning the floors of the lobby. According to the agreement, Initial was responsible for polishing the marble floor, steam cleaning the mats, and employing a day porter to pick up debris in all public areas, among other things. Regarding the duties of the day porter, the agreement stated that the porter was under the direction of the building manager. According to Mormile's testimony at her examination before trial, it was "drizzly" outside on the morning of the accident and it had rained the night before. She testified that it was "visibly a rainy day," but that [*2]the rain had stopped by the time she got out of the subway and was walking to the building. She also testified that there was precipitation on the ground. Mormile arrived at the premises, where she was employed by J.P. Morgan Chase, at approximately 8:30 a.m. and proceeded to her office. At this time, according to Mormile, the mats in the lobby were already laid down. At approximately 9:30 a.m., Mormile left her office on the 36th floor to get coffee from a vendor on 47th Street near the premises. As Mormile was walking across the lobby on her way out of the building, she slipped on an area of the marble floor that was not allegedly covered by the carpeted mats. Mormile testified that there was approximately two feet of exposed marble between the mats and that this was where she fell. According to Mormile, there were two or three mats laid out on the lobby floor, all with the same two foot gap between them, and this is the way she had seen them configured on the floor on prior occasions. Mormile added that she slipped on "wetness" and that she did not see the wetness until after her fall when she noticed there were "scattered droplets and puddles" on the floor. Mormile also testified that the rain had stopped by the time of her accident. She stated that she did not see any janitor or maintenance person or any yellow warning signs in the lobby at the time of her fall. When asked if she saw a porter in the lobby, she testified that she only remembered seeing an individual working with a planter in the lobby at the time of the accident.[FN1] According to Mormile, she believed the wetness on the floor was caused by people walking in from outside and tracking in the rain. However, Mormile testified that she did not know the exact origin of the wetness or how long it had been on the lobby floor. She further testified that she reported the wetness on the floor to a security guard after her fall and that she had not made any previous complaints regarding wetness in the lobby prior to her accident.[FN2]

According to the deposition testimony of Eladio Bracero (Bracero), the premises' tenant service coordinator employed by Rockefeller at the time of the accident,[FN3] Initial was responsible for laying down the carpeted mats in the event of rain and this was done without any direction from Rockefeller. Bracero also testified that the mats were custom-made for the premises and selected by Rockefeller and that they were laid down end-to-end so that they were very close to each other when covering the floor. According to Bracero, there was no gap when the mats were laid properly on the floor and the only place where the marble floor would be exposed would be near the elevator banks to the rear of the reception desk. Bracero added that Initial was the only contractor at the premises that was responsible for cleaning and mopping the lobby. However, Bracero conceded that he and [*3]other Rockefeller employees were responsible for making sure that the cleaning was done correctly, for making inspections, and for informing the property manager if the cleaning or maintenance was not done properly. In the event that he noticed a spill or accumulation of liquid on the floor of the lobby, Bracero stated that he would radio security personnel to cordon off the area with stanchions and warning signs and then notify Initial of the condition to be remedied. Bracero testified that, prior to the incident, he had not heard any complaints about the accumulation of water on the lobby floor or the placement of the mats, although he knew that there had been slip and fall accidents in the lobby in the past, but did not know specifics of any of the incidents.

According to the deposition testimony of Lbujo Mustac (Mustac), the acting foreman for Initial at the time of the incident, Initial was responsible for placing the mats before it started raining, without instruction from the building management. Similar to the testimony of Bracero, Mustac testified that, on the morning of the accident, his shift began at 7:30 a.m. and he did not observe any gap between the rugs placed on the lobby floor or any accumulation of water on the floor. Mustac also testified that, in the event of rain, Initial would place two porters in the lobby to monitor the water on the floor and yellow warning signs throughout the lobby.

On or about March 9, 2004, Mormile commenced an action (under Index No. 7703/04) against the owner of the premises, JT1211, and the alleged building manager, Jamestown. After discussions with Mormile's counsel, defendants discovered that Jamestown was not the building manager, but that Rockefeller was. Defendants also discovered that Initial had contracted with Rockefeller to perform cleaning and maintenance duties at the premises. Mormile served a supplemental summons and amended complaint to reflect this information on November 23, 2004. On or about January 3, 2005, Mormile commenced a separate action against Initial, sounding in common law negligence (under Index No. 623/05) . These actions were, upon motion by Mormile, consolidated under Index No. 7703/04.

In its motion for summary judgment, Initial argues that Mormile does not know the nature of the alleged condition that caused her fall, how the alleged condition came to be on the floor, or for what length of time the alleged condition existed. Therefore, Initial maintains that Mormile cannot establish that the water was present for any length of time such that any of the defendants would have had sufficient time to discover the condition and remedy it. According to Initial, since plaintiff cannot establish that any of the defendants created or had actual or constructive notice of the alleged hazardous condition, plaintiff is "apparently pursuing the theory that there should have been a weather mat in the precise location of the occurrence." In this regard, Initial asserts that "it has been repeatedly held that a defendant is not required to cover a lobby floor with mats, nor is a defendant obligated to continuously mop up all moisture resulting from any tracked-in precipitation." Moreover, Initial asserts that, regardless of the sufficiency and placement of the weather mats, a plaintiff must establish notice of the alleged condition and Mormile cannot establish notice in the instant case. Initial further notes that "plaintiff cannot establish that Initial owes her a legal duty," as it has been repeatedly held that an independent contractor has no legal duty to a non-contracting party, absent very limited circumstances.[FN4] Moreover, Initial argues that plaintiff's complaint should [*4]be dismissed because the "storm in progress" doctrine is applicable. Regarding defendants' cross claims for common-law indemnification and contractual indemnification, Initial contends that such claims should be dismissed on the grounds that: (1) plaintiff cannot meet her prima facie burden against any of the defendants, (2) defendants have not established that the purported contract was in effect at the time of the occurrence,[FN5] (3) the terms of the purported contract were not triggered by the subject accident,[FN6] (4) Initial has met any and all conditions and requirements contained in the purported contract; (5) Initial was free from any active negligence, (6) defendants have not established that they were free from active negligence, and (7) the purported contractual indemnification provision is void pursuant to General Obligations Law § 5-322.1. Regarding the application of § 5-322.1, Initial argues that under "the only conceivable scenario where [this] provision would be applicable (i.e. if plaintiff proves that the [defendants] [were] actively negligent), the General Obligations Law would void the provision" because, pursuant to § 5-322.1, a party cannot contract with another party to indemnify it relative to its own negligence.

Regarding the arguments submitted by Initial in support of its motion for summary judgment, the court notes that defendants adopt the same arguments in their own motion.

In opposition to both Initial and defendants' respective motions for summary judgment, Mormile argues that, in failing to properly carry out its duty to fit the mats together so as to completely cover the floors with no gaps (a duty Initial knew, according to Mustac, was necessary [*5]in order to prevent the floor from becoming slippery and dangerous), Initial exacerbated the already slippery and dangerous condition of the floor and caused her slip and fall.[FN7] In this regard, Mormile notes that, since the mats absorb water, when pedestrians cross the mats they transfer water onto the bare sections of the floor between the allegedly improperly placed mats. Mormile also contends that the placement of the mats gave Mormile and other pedestrians the false impression that the floor was properly covered and safe to traverse. Moreover, Mormile asserts that the contract to maintain the lobby of the premises was "comprehensive and exclusive" and that Initial acted independently in caring for and cleaning the subject area. According to Mormile, it is reasonable to infer that defendants knew of the dangerously slippery condition of the floor when it became wet and were aware that it was wet that morning for a significant period of time, "certainly long enough to remedy the condition." Mormile adds that, because the mats were not properly placed end-to-end, there were no signs warning of the wet condition of the floor, and no porters were present to clean the water, there is an issue of fact as to whether Initial breached its duty to Mormile as a third-party beneficiary of Initial's contractual obligations. According to Mormile, the cases cited by Initial regarding the placement of weather mats are not applicable as they deal with landowners who owed no duty to place mats and guard against water accumulation, unlike in this case where Initial which had a contractual duty to properly place the mats. Finally, Mormile argues that, because the rain had stopped by the time Mormile got on the subway on the way to work, the "storm in progress" doctrine does not apply.

In opposition to that branch of Initial's motion which seeks to dismiss the cross claims that have been asserted against Initial by defendants, defendants assert that the purported contract between Rockefeller and Initial was in effect on the day of the alleged accident. In support of this contention, defendants note that, "[b]y its terms, and as plainly and obviously stated in the second paragraph of the first page of the Service Purchase Agreement, the contract between [defendants] and [Initial] was automatically renewed' from month to month until the contract was terminated." In this regard, defendants argue that, "[w]ithout any such evidence of a termination, it is obvious that the contract between defendants and Initial was valid and in effect on the day of Mormile's alleged accident." Further, defendants maintain that the obligation of Initial to defend and indemnify defendants is independent of Mormile's ability or inability to make out a prima facie case of negligence against any of the defendants. Turning to the language of the indemnification provision, defendants contend that Mormile "clearly has alleged that the accident was due to an act, omission, or negligence on the part of, among others, [Initial]," and, once there is such an allegation, defendants are entitled to be defended and, if necessary, indemnified by Initial. In addition, according to defendants, General Obligations Law § 5-322.1 is inapplicable because the indemnity [*6]provision at issue does not seek indemnification based on an act or omission on the part of defendants but, rather, on the part of the "Contractor," in this case, Initial. Defendants argue, in the alternative, that, if the court decides that the indemnification provision is void under § 5-322.1, Initial still cannot avoid its obligation to insure defendants with respect to any liability that arises from any act, omission, or negligence on the part of Initial or defendants. In this regard, defendants maintain that Initial has not provided the requisite insurance called for by the agreement, and is, therefore, in breach of its contract and liable to defendants as if it were the insurer for them.

In reply, defendants argue that plaintiff has failed to establish that the wet condition was created by them or that they had actual or constructive notice of the specific wet condition that allegedly caused Mormile's accident. Defendants assert that there is no evidence that they were informed of or knew of the existence of the allegedly wet condition and they maintain that a general awareness that wet conditions could occur in the lobby is legally insufficient to establish a prima facie case of negligence against them.

In its reply papers, Initial reaffirms its reliance on Espinal and further states that Mormile's argument that Initial's cleaning contract "entirely displaced" the duty of owners and managers to safely maintain the premises is inaccurate. Initial notes that the building owners hired a property manger to manage the building, as well as security guards and other cleaning contractors at the premises. Moreover, Initial claims that it did, in fact, meet its prima facie burden of entitlement to summary judgment by submitting the deposition testimony of Bracero and Mustac, as well as that of Mormile herself, to the effect that there was no notice of any purportedly dangerous condition. In response to Mormile's opposition regarding the placement of the weather mats, Initial argues that Mormile has not provided any legal authority to support her position and that any attempt to establish liability against defendants by asserting that they failed to place weather mats in the precise area where Mormile fell must fail as a matter of law.

In their motion for summary judgment based upon an alleged breach of contract and for a declaration that Initial must defend and, if necessary, indemnify defendants with respect to plaintiff's claims, defendants argue that Initial has refused to abide by its contract and to take over the defense of this action on defendants' behalf. Defendants note that Mormile's allegation that the lobby floor was wet and that there was a separation between the mats is "within the contractual responsibility of [Initial]." Defendants point out that the defense and indemnification provision does not require that there be a finding that Initial was negligent before Initial's contractual obligation to defendants is triggered; rather, it is only necessary that it be alleged "that the accident arose from or was related to [Initial's] performance, or non-performance, of any of its services."

The court notes that Initial's opposition to defendants' motion is substantially similar to Initial's arguments in its own motion for summary judgment and, therefore, several arguments will not be repeated here. Initial asserts that defendants' claims for indemnification are without merit because: (1) Mormile will never be able to establish a prima facie cause of action in negligence against any of the defendants, (2) Mormile cannot avoid her burden of establishing notice by alleging that there were no mats in the precise area where she fell, and (3) Mormile cannot establish liability against any of the defendants because they are entitled to summary judgment based upon the "storm in progress" doctrine. Initial further contends that, even if Mormile's complaint is not dismissed, defendants' cross claims against Initial should be dismissed and the indemnification provision voided because a party cannot contract with another to indemnify it relative to its own negligence. Finally, [*7]Initial reiterates its argument that defendants' common-law and contractual indemnification claims should be dismissed because defendants have not produced any evidence that the purported contract is valid and binding. In this regard, Initial notes that there is no affidavit from someone with personal knowledge regarding the purported "automatic renewal" of the contract and that it is the obligation of defendants, not Initial, to establish the existence of a contract. Initial also points out that defendants have not responded to Initial's argument that the various documents submitted with the contract may or may not be related. Finally, regarding defendants' claim that Initial has failed to procure insurance in accordance with the terms of the contract, Initial asserts that this argument was raised for the first time in opposition to the motion for summary judgment and, therefore, it should not be considered.

It is well established that summary judgment will be granted only if there are no triable issues of fact (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; Famularo v Havasi, 221 AD2d 587 [1995]). "On a motion for summary judgment the court is not to determine credibility but whether there exists a factual issue, or if arguably there is a genuine issue of fact" (S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341 [1974]). To establish a prima facie case of negligence against defendants, a plaintiff must show: (1) the existence of a duty on each defendant's part to plaintiff; (2) a breach of that duty; and (3) that such breach was a substantial cause of the resulting injury (see Gross v NYC Transit Authority, 256 AD2d 128, 129 [1998]; Cruz v NYC transit Authority, 136 AD2d 196, 198 [1988]). In order to establish a prima facie case of negligence in a "slip and fall" case, a plaintiff must demonstrate that defendant created the condition or had a sufficient opportunity, within the exercise of reasonable care, to remedy the situation (see Gordon v American Mus. of Nat. Hist., 67 NY2d 836 [1986]; Lewis v Metropolitan Transp. Auth., 99 AD2d 246 [1984], affd, 64 NY2d 670 [1984]).

For there to be constructive notice, "a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v American Mus. of Nat. Hist., 67 NY2d 836, 837 [1986]; Negri v Stop & Shop, Inc., 65 NY2d 625 [1985]; Raffile v Tower Air, Inc., 264 AD2d at 721 [1999]; Rojas v Supermarkets General, 238 AD2d 393 [1997], lv denied 91 NY2d 814 [1998]). "The mere happening of the accident does not establish liability on the part of the defendant" (Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 251 [1984], affd 64 NY2d 670 [1984]); rather, it must be shown that "the owner ha[d] a sufficient opportunity, within the exercise of reasonable care, to remedy the situation," and failed to do so (see Mercer v City of New York, 223 AD2d 688, 689 [1996], affd 88 NY2d 955 [1996]). Moreover, "a general awareness' that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition that caused plaintiff's fall" (Piaquadio v Recine Rlty., 84 NY2d 967, 979 [1984]). Mere surmise and conjecture that a defendant created the dangerous condition does not demonstrate an issue of fact sufficient to survive a motion to dismiss (see Ramatowski v City of New York, 284 AD2d 318 [2001]; see also Eddy v Tops Friendly Mkts., 91 AD2d 1203 [1983], affd 59 NY2d 692 [1983]).

The court finds that both Initial and defendants have satisfied their burden of making a prima facie showing that they did not create the allegedly hazardous condition which purportedly caused Mormile's fall and that they lacked actual and/or constructive notice of the condition. It, therefore, became incumbent upon Mormile to come forward with evidentiary proof, in admissible form, to demonstrate the existence of a triable issue of fact. [*8]

Viewing the evidence in the light most favorable to Mormile, the court finds that she has not demonstrated that Initial or defendants committed any affirmative act of negligence or that any negligence on their part either created or increased a hazard that would not have otherwise existed. Moreover, on the record before the court, there is no evidence from which it may be reasonably inferred that any breach of duty by Initial or defendants substantially or proximately resulted in Mormile's injury. Similarly unavailing is Mormile's contention that the placement of the mats in the area where plaintiff fell "exacerbated" the condition of the wetness that caused her fall (see Espinal at 141-142). Defendants were not required to cover the floors with mats (see Kovelsky v City University of New York, 221 AD2d 234, 234 [1995]) or to constantly respond to rainwater being tracked in from the outside (see Keum Choi v Olympia & York Water Street Co., 278 AD2d 106, 107 [2000]). Consequently, Mormile's submissions do not raise a triable issue of fact as to whether Initial or defendants created a dangerous condition by the placement and utilization of the floor mats (see Dini v Imperial Workwear Services, Inc., 300 AD2d 279 [2002]; Schneider v Analisa Salon Ltd., 270 Ad2d 245 [2000]).[FN8]

While Mormile contends that Initial and defendants had actual notice of the allegedly wet condition on the lobby floor, she has submitted no proof that refutes Initial and defendants' showing of lack of notice. As noted above, Mormile did not observe the wetness prior to her fall but, rather, noticed the alleged condition after her fall. Furthermore, there is no evidence of a history of prior accidents similar to that of Mormile's, or that Initial or defendants were aware of any prior complaints of the condition. Thus, Mormile has failed to raise a triable issue of fact with respect to Initial and defendants' lack of actual notice.

Although Mormile further claims that Initial and defendants had constructive notice of the condition of the floor, there is no evidence that the wetness existed for any appreciable length of time before Mormile's accident. Moreover, any "general awareness" that Initial or defendants may have had that water might be tracked into the premises on a rainy day does not establish constructive notice of the specific condition alleged here. There is no evidence from which a jury could reasonably conclude that the alleged wetness existed for a period of time to allow Initial or defendants to have discovered and remedied it (see Mercer AD2d at 689). It is, for example, quite possible that any water which was on the floor had been tracked into the building by individuals immediately preceding Mormile (see Keum Choi 278 AD2d at 107; Kovelsky 221 AD2d at 234; Hussein v New York City Tr. Auth., 266 AD2d 146 [1999]). [*9]

Accordingly, the motions by Initial and defendants for summary judgment are granted.[FN9]

Contractual indemnification is generally decided as a matter of law pursuant to the terms of the contract after the trier of fact determines culpability. "A party is entitled to full contractual indemnification provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances" (Drzewinski v Atlantic Scaffold & Ladder Co., Inc., 70 NY2d 774, 777 [1987]). Since this court has determined that neither Initial nor defendants are liable to Mormile, it is unnecessary to resolve the issue of indemnification. However, it appears that, pursuant to the terms of the subject agreement, Initial was required to provide for defendants' defense in actions arising out of or in connection with Initial's work under the subject contract. Specifically, paragraph 9 of the agreement provides, as is relevant:

"Contractor will indemnify and save harmless Owner . . . from and against any and all liability (including, but not limited to, statutory liability), loss, damages, interest, judgments, and liens growing out of, and any and all costs and expenses (including, but not limited to, counsel fees and disbursements) arising out of or incurred in connection with, and all claims, demands, suits, actions, and/or proceedings which shall be made or brought against any of the Indemnitees for or in relation to: (a) any (or any alleged) injury to, or death of, any person or persons . . . arising out of or in connection with the performance of the Services . . . which shall be (or shall be alleged to be) in whole or in part due to or the result of any act, omission, negligence, carelessness or unlawful conduct on the part of Contractor . . ."

Because the underlying personal injury action alleges that both Initial and defendants were responsible for the claimed dangerous condition of the subject premises and that said condition resulted, at least in part, from work performed by Initial, Initial's responsibility to defend defendants in this action preceded and survives the court's subsequent determination, as set forth herein, that [*10]neither Initial nor defendants are liable to Mormile.

Defendants met their initial burden of demonstrating an entitlement to contractual indemnification by introducing the contract, which includes an indemnification clause in their favor. In response to this prima facie showing, Initial attempts to an raise issue of fact regarding the validity of the contract. Specifically, Initial argues that the agreement between Initial and Rockefeller had expired by the time of the accident. However, the contract also provided for automatic renewal and Initial presented no evidence that the contract has been terminated by either party. Initial also asserts that there has been no testimony from anyone with personal knowledge regarding whether the document titled Exhibit "A," "Specifications, General Cleaning Conditions, Frequency Explanations," is part of the contract signed by both parties. Initial contends that it is unclear how this document relates to the contract, why its provisions are in a different font from the remainder of the contract or why multiple sections of the purported contract pertained to the same areas of the building. The court notes that the agreement signed by both parties refers to Exhibit "A" as providing for a more detailed explanation of the required services which Initial must perform under the contract. Initial presents no evidence to refute defendants showing that Exhibit "A" was part of the subject agreement. Moreover, contrary to Initial's contention, the prohibition against indemnifying a party for its own negligence pursuant to General Obligations Law § 5-322.1 does not apply where, as here, the party seeking indemnification is found to be free of any negligence (see Davis v All State Assoc., 23 AD3d 607, 608 [2005]). Accordingly, that branch of defendants' motion which seeks an order granting summary judgment with respect to its cross claims for indemnification against Initial is granted to the extent of declaring that Initial was and is required to defend defendants in the underlying personal injury action and to reimburse defendants for all legal expenses incurred in the underlying action. A hearing will be scheduled before a JHO, to determine the appropriate amount of compensation.

The court has considered defendants' remaining contentions regarding Initial's alleged failure to procure insurance and finds that, since defendants did not expressly move for summary judgment on this ground, the issue is not appropriately before the court at this time.

The foregoing constitutes the decision and order of this court.

E N T E R,

J. S. C. Footnotes

Footnote 1: On this point, the court notes that, according to the contract, it was within the duties of the day porter to clean all lobby planters daily, keeping them free of debris at all times.

Footnote 2: Mormile testified that she complained to her boss about the placement of the mats; however, there is no testimony that she complained to anyone about any accumulation of water on the lobby floor.

Footnote 3: In November 2002, Bracero began working for ING Clarion as the property administrator in the subject building and then later began working for Cushman & Wakefield in August 2006 in the same role. Despite his numerous changes of employment at the premises as the building management changed, Bracero testified that he has been involved in some capacity there for over 10 years.

Footnote 4: Initial cites Espinal v Melville Snow Contractors, Inc., (98 NY2d 136 [2002]) to the effect that there are three factors to be considered in evaluating whether an independent contractor owes a non-contracting third party a duty: "(1) whether the contracting party in failing to exercise reasonable care in the performance of his duties launches a force of harm; (2) whether the plaintiff detrimentally relied upon the continued performance of the contractor's duties' and (3) whether the contracting party has entirely displaced the owners and managers duties to safely maintain the premises." In Espinal, the Court of Appeals held that the snow removal contract at issue was not the type of "comprehensive and exclusive property maintenance obligation" which could provide a basis for liability" since it did not entirely absorb the landowner's duty to maintain the premises safely (Espinal, NY2d at 141). Here, Initial argues that it only performed "certain limited cleaning duties at the building" and that there were numerous other entities that had management and maintenance responsibilities at the building.

Footnote 5:Initial claims that defendants have not produced a valid and binding contract because the expiration date of the contract between Rockefeller and Initial was December 31, 2001, which was prior to the accident. Initial also claims that the contract "contains various documents that may or may not even be related." Initial notes that Bracero admitted during his examination before trial that he had no personal knowledge of the purported contract. Initial further contends that Bracero testified that the purported contract had multiple sections with different fonts and that he did not know if these various documents constituted a single contract.

Footnote 6:The indemnification provision in the purported contract contains the following language: "and which shall be (or shall be alleged to be) in whole or in part due to or the result of any act, omission, negligence, carelessness, or unlawful conduct on the part" of Initial. According to Initial, this provision "clearly contemplates some act or omission on the part of Initial that caused or contributed to the occurrence." However, Initial notes that there has not been any evidence submitted to suggest that Initial's acts or omissions were, in fact, a cause of the accident.

Footnote 7: In support of this argument, Mormile cites Espinal, which is also relied upon by defendants, and argues that "[i]n actuality, Espinal stands for the proposition that a defendant who undertakes to render services and then negligently creates or exacerbates a dangerous condition may be liable for any resulting injury'" (Espinal, at 141-142). Mormile contends that, rather than supporting the proposition that an independent contractor owes no duty to a non-contracting third-party, Espinal instead supports the position that Initial, as the primary and only contractor at the subject location responsible for the care and maintenance of the subject lobby, owed a duty to Mormile to maintain the lobby in a reasonably safe condition.

Footnote 8: Mormile argues that Initial owed a duty to her as a third-party beneficiary of its contractual obligation to maintain the floors. Relying on Espinal, Mormile asserts that defendants and Initial exacerbated the condition of the floor by leaving an exposed gap between the mats. Even if the contract between Initial and Rockefeller was "comprehensive and exclusive" and Initial's contractual duty displaced the duty of defendants to maintain the floors, there is simply no evidence that the placement of the mats made the alleged wet condition of the floor any worse. This is especially true in the absence of any duty to cover the entire lobby floor with mats in the first place.

Footnote 9: It is axiomatic that owners of real property owe to those using their property the duty to exercise reasonable care in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (see Jarvis v Eastman, 202 AD2d 826, 827 [1994]; Koppel v Hebrew Academy of Five Towns, 191 AD2d 415 [1993]; also see Basso v Miller, 40 NY2d 233 [1976]). According to Mormile, it rained the evening before, and the morning of, the accident, but the rain had stopped by the time she got off of the subway on her way to work. Defendants claim that the "storm in progress" defense is applicable here and should absolve them from liability. Generally, there is no liability for a plaintiff's injuries resulting from a fall on accumulated rain until after the storm has ended, so as to allow the defendants a reasonable period of time to clean the area (see Solazzo v New York City Transit Authority, 21 AD3d 735 [2005] citing Valentine v City of New York, 86 Ad2d 381 [1982]). Defendants failed to come forward with any evidence to substantiate their claim that Mormile sustained her injury during the course of an ongoing storm. Defendants did not submit any meteorological data to demonstrate that there was some form of precipitation during the pertinent time period and the only relevant testimony on this point came from Mormile, who stated that it was raining on the morning of her injury, but that the rain had stopped by the time of her accident. Under such circumstances, defendants plainly cannot avail themselves of this defense.