Simon v Astoria Fed. Sav.

[*1] Simon v Astoria Fed. Sav. 2010 NY Slip Op 50567(U) [27 Misc 3d 1206(A)] Decided on April 8, 2010 Supreme Court, Kings County Battaglia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 8, 2010
Supreme Court, Kings County

Marvin Simon, Plaintiff,

against

Astoria Federal Savings, CAPITAL CONTRACTORS, INC. and RELIABLE CLEANING, INC., Defendants.



31163/06



Plaintiff was represented by Richard J. Katz, Esq. Defendant/third-party plaintiff Astoria Federal Savings was represented by Regine Dely-Lazard, Esq. of Hoey, King, Toker & Epstein. Defendant/third-party defendant Capital Contractors, Inc. and third-party defendant Capital Cleaning Contractors, Inc. were represented by Robert S. Bonelli, Esq. of the Law Offices of Michael E. Pressman.

Jack M. Battaglia, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on defendants/third-party defendants Capital Contractors, Inc.'s and Capital Cleaning Contractors, Inc.'s motion for an order, pursuant to CPLR 3212, granting them summary judgment dismissal of the complaint, all cross-claims, and the third-party complaint as against them, and for an order [*2]granting them indemnification from defendant Reliable Cleaning, Inc.; and on defendant Astoria Federal Savings's motion for an order, pursuant to CPLR 3212, granting it summary judgment dismissal of Plaintiff's Amended Verified Complaint and all cross-claims as against it, and for an order granting it common law or contractual indemnification from defendant Capital Contractors, Inc. and Reliable Cleaning, Inc.:

-Notice of Motion for Summary Judgment

Affirmation in Support

Exhibits A-L

-Memorandum of Law

-Notice of Motion for Summary Judgment

Affirmation in Support

Exhibits A-K

-Affirmation in Opposition

Exhibits A-I

-Affirmation in Opposition

Exhibits A-I

-Affirmation in Partial Opposition

-Reply Affirmation

-Reply to Plaintiff's Affirmation in Opposition

On December 4, 2005, plaintiff Marvin Simon allegedly sustained personal injuries when he slipped and fell on snow and ice located on the sidewalk in front of premises owned by defendant Astoria Federal Savings ("Astoria") located at 5220 13th Avenue in Brooklyn. Defendant Astoria allegedly hired Capital Contractors, Inc. and Capital Cleaning Contractors, Inc. (collectively "Capital") to perform maintenance, including snow removal, at the premises. Capital in turn subcontracted snow removal to Reliable Cleaning, Inc. Astoria and Capital now each move, pursuant to CPLR 3212, for summary dismissal of Plaintiff's Amended Verified Complaint.

Capital's Motion (Cal. No. 40)

Capital first contends that it is entitled to summary judgment because it did not owe a duty to Plaintiff to remove snow and ice from the sidewalk. Capital contends that "[b]ased upon the contract and testimony in the facts at bar, it is readily apparent that Capital did not displace defendant Astoria's duty as a landowner to maintain the premises safely," and that "[t]he contract between Capital and Astoria . . . does not in anyway [sic] invoke the general duty of landowner onto defendant Capital."

"Generally a snow removal contractor's contractual obligation, standing alone, will not give rise to tort liability in favor of third parties unless: (1) the snow removal contractor, in failing to exercise reasonable care in the performance of its duties, launched a force or instrument of harm; (2) the plaintiff detrimentally relied on the continued performance of the snow removal [*3]contractor's duties; or (3) the snow removal contractor has entirely displaced the owner's duty to safely maintain the premises." (Lehman v North Greenwich Landscaping, LLC, 65 AD3d 1291, 1292 [2d Dept 2009]; see also Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002].)

Capital does not make any showing that Plaintiff did not "detrimentally rel[y] on the continued performance of the snow removal contractor's duties." (See Lehman v North Greenwich Landscaping, LLC, 65 AD3d at 1292; Espinal v Melville Snow Contrs., 98 NY2d at 140.)

In support of its contention that it did not entirely displace the owner's duty to safely maintain the premises, Capital submits a copy of a Notice to Admit that it served upon Astoria, seeking an admission that Exhibit "1"of the Notice to Admit is a "true and accurate copy of the Purchase Order between Capital Cleaning Contractors and Astoria Federal Savings, for the time period of November 1, 2005-May 31, 2006", that Exhibit "2" is a true and accurate copy of the "snow specification" provided by Astoria to Capital, and that Exhibit "3" is a true and accurate copy of the extension of snow removal services between Astoria and Capital. But Capital fails to attach either Exhibit "1", "2", or "3" of the Notice to Admit to its motion papers, nor does it show how the Notice to Admit can bind Plaintiff. Indeed, Astoria's Response to Notice to Admit states that the exhibits attached to Capital's Notice to Admit were incomplete. Capital also submits Astoria's Response to Combined Demands, which includes a copy of a Purchase Order, and a copy of Specifications relating to snow removal. The Purchase Order refers to Terms and Conditions on the reverse side, but they are not provided.

Although Capital does not clearly say so, it apparently considers the Purchase Order and the Specifications to constitute its contract with Astoria on the date of Plaintiff's fall. But the Purchase Order is dated February 9, 2006, more than two months after Plaintiff's fall on December 4, 2005. Capital points to no writing in which Capital accepted the Purchase Order and Specifications (as well as the missing Terms and Conditions) as the contract between the parties, nor does Capital make any showing that these documents became their contract as a matter of fact or of law. The Court is aware that Astoria has also submitted the Purchase Order and Specifications, accompanied by the Terms and Conditions, but Astoria's submission is no more effective than Capital's in retroactively establishing a contract between the parties so as to determine Plaintiff's rights.

Since Capital fails to establish the contract between it and Astoria that was in effect at the time of the accident, it fails to demonstrate prima facie that it did not entirely displace Astoria's duty to maintain the premises such that it did not owe Plaintiff a duty. The fact that Astoria kept ice melt on the premises for emergency purposes, as testified to by Astoria's Manager of Facilities, does not alone establish that Capital did not contractually agree to displace Astoria's duty to maintain the premises.

In any event, Capital also fails to demonstrate that it did not "launch[] a force or instrument of harm" (see Prenderville v International Service Systems, Inc., 10 AD3d 334, 336 [*4][1st Dept 2004] [involving a claim of negligent snow removal].) In this regard, "in order to make a prima facie showing of entitlement to judgment as a matter of law, [Capital] [must] establish that [it] did not perform any snow removal operations with respect to the condition that caused this plaintiff's injury, or, alternatively, that if [it] did perform such operations, those efforts did not create or exacerbate a dangerous condition." (See id.)

On this issue, Capital contends that it did not perform snow removal services for Astoria, but that it subcontracted snow removal to defendant Reliable Cleaning, Inc. ("Reliable"). In support, Capital points to the deposition testimony of its Regional Operations Manager, Joseph Brett, that in December of 2005, Capital "handled the janitorial services, as well as snow removal at [Astoria]"; that Capital was "responsible for cleaning the building six days a week, as well as on call for snow removal"; that Capital hired Reliable to perform the snow removal; that Reliable performed snow removal at Astoria in December 2005; that there was a verbal agreement between Capital and Reliable regarding Reliable's performance of snow removal; and that Reliable was provided with the Purchase Order between Astoria and Capital, which set forth specifications on how snow removal was to be performed.

However, Mr. Brett also testified that Capital monitored the storm; that as soon as snow starts, "we have people sent to the field"; that a supervisor from Reliable works directly under him, and reports to him; that he is in "constant communication" with the Reliable supervisor; and that Capital instructed Reliable on how to perform the snow removal at the premises. As such, Mr. Brett admits that Capital had at least a supervisory role with respect to snow removal at the subject premises. Capital makes no showing that supervision is legally insufficient to make it liable for negligent snow removal. As a result, Capital fails to establish that it did not perform any snow removal operations with respect to the condition that allegedly caused Plaintiff to fall.

Moreover, Capital does not point to any evidence from a person with personal knowledge as to Capital's involvement with any snow removal at the subject premises on the date of the accident, or any person with personal knowledge regarding the condition of the sidewalk just prior to Plaintiff's accident. (See e.g. Suh v Fleet Bank, N.A., 16 AD3d 276, 276 [1st Dept 2005].) In this regard, Capital makes no showing that the snow removal operations did not create or exacerbate a dangerous condition. (See Prenderville v International Service Systems, Inc., 10 AD3d at 336.)

Capital also contends that it is entitled to summary judgment because it did not have actual or constructive notice of the alleged dangerous condition. In support, Capital first points to Plaintiff's deposition testimony, to the effect that Plaintiff did not observe the icy condition of the sidewalk until after he fell. Such testimony does not establish that Capital did not have actual or constructive notice of the icy condition on the sidewalk. "As a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense." (Mennerich v Esposito, 4 AD3d 399, 400 [2d Dept 2004].) [*5]

Again, Capital does not point to any testimony from any person with personal knowledge regarding the condition of the sidewalk on the date of Plaintiff's accident. (See e.g. Suh v Fleet Bank, N.A., 16 AD3d at 276.) As such, Capital fails to demonstrate prima facie that it did not have actual or constructive notice of the icy condition. Accordingly, the branch of Capital's motion seeking summary dismissal of Plaintiff's Amended Verified Complaint, the Third-Party Complaint, and all cross-claims against it is denied.

The branch of Capital's motion seeking summary judgment on its claim for indemnification against Reliable, who has not interposed an answer, is also denied. (See CPLR 3212[a]; see also Coolidge Equities Ltd. v Falls Court Properties Company, 45 AD3d 1289, 1289 [4th Dept 2007].) Indeed, Capital, as well as Plaintiff and Astoria, has already been awarded a default judgment against Reliable pursuant to a Short Form Order (Hinds-Radix, J.) dated January 24, 2008.

In sum, Capital's motion is denied in its entirety.

Astoria's Motion (Cal. No. 41)

Astoria first contends that it is entitled to summary judgment on the ground that it "had no actual or constructive notice of the alleged ice condition." In support, Astoria only points to Plaintiff's deposition testimony, which does not establish that Astoria did not have actual or constructive notice of the icy condition. Again, "a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense." (Mennerich v Esposito, 4 AD3d at 400.)

Astoria also contends that it "did not create or exacerbate the alleged ice conditions," but does not point to any testimony demonstrating that on the date of the accident it did not perform negligent snow and ice removal. It is not for the Court to review voluminous exhibits to find testimony that may support a summary judgment movant's contentions.

Astoria further contends that it is entitled to summary judgment on the ground that "Capital's snow removal contract with Astoria in effect on December 4, 2005 was comprehensive and exclusive." Nonetheless, Astoria fails to demonstrate how having a comprehensive and exclusive snow removal contract with Capital would relieve it from liability under Administrative Code of the City of NY § 7-210, which declares a "duty of the owner of real property abutting any sidewalk . . . to maintain such sidewalk in a reasonably safe condition" (see Administrative Code § 7-210[a]), and imposes liability upon the owner for, among other things, "the negligent failure to remove snow, ice, dirt or other material from the sidewalk" (see id. § 7-210[b].)

"[P]rior to the adoption of Administrative Code of City of NY §7-210, a property owner owed no duty to pedestrians to remove snow and ice that naturally accumulated on the sidewalk [*6]in front of the premises, but if it undertook to do so, it could be held liable if it negligently created or exacerbated a dangerous condition." (Ortiz v Citibank, 62 AD3d 613, 613 [1st Dept 2009]; see also Campos v Midway Cabinets, Inc., 51 AD3d 843, 843-44 [2d Dept 2008]; Bisontt v Rockaway One Company, LLC, 47 AD3d 862, 863 [2d Dept 2008].) Although "property owners in New York City had a statutory duty . . . to remove the snow or ice, dirt, or other material from the sidewalk' " (see Vucetovic v Epsom Downs, Inc., 10 NY3d 517, 519 [2008] [quoting Administrative Code of City of NY §16-123 (a)]), "[f]ailure to comply . . . resulted in fines or an obligation to reimburse the City for its expenses incurred in performing the necessary work, but not tort liability" (see id. at 519-20.)

With Administrative Code §7-210, the City Council transferred the City's potential liability for failure to clear snow and ice from the public sidewalks (see Garricks v City of New York, 1 NY3d 22, 26-27 [2003]) to the adjoining property owners, with language that "mirrors the duties and obligations of property owners" with respect to the removal of snow and ice that previously only resulted in fine or reimbursement. (See Vucetovic v Epsom Downs, Inc., 10 NY3d at 521; see also Braun v Weissman, 68 AD3d 797, 798 [2d Dept 2009] [owner-occupied residential premises exempt from §7-210]; Falchook v J & M Kingsley, Ltd., 67 AD3d 632, 633 [2d Dept 2009] [Town of Huntington ordinance].)

As seen in connection with Capital's motion, a snow removal contractor who has "entirely displaced" a property owner's "duty to maintain the premises safely" will be deemed "to have assumed a duty of care - - and thus be potentially liable in tort - - to third persons." (See Espinal Melville Snow Contrs., Inc., 98 NY2d at 140.) Where the subject premises are owned privately, the suggestion is that where the contractor is liable, the property owner is not. (See Kaehler-Hendrix v Johnson Controls, Inc., 58 AD3d 604, 606 [2d Dept 2009] ["A property owner, or one who has displaced the owner's duty to maintain the premises safely" (emphasis added)].)

Generally, under the rubric of "nondelegable duty," a party who retains an independent contractor will be found vicariously liable for the negligence of the contractor where the employer "is under a statutory duty to perform or control the work," or "is under a duty to keep premises safe," (See Paul Brothers v New York State Elec. & Gas Corp., 11 NY3d 251, 257-59 [2008] [quoting Rosenberg v Equitable Life Assur. Socy. of U.S., 79 NY2d 663, 668 (1992)].) A property owner will, therefore, be vicariously liable where an independent contractor's snow removal efforts cause or exacerbate a dangerous snow or ice condition on the premises. (See Olivieri v G M Realty Co., LLC, 37 AD3d 569, 570 [2d Dept 2007]; see also Backiel v Citibank, N.A., 299 AD2d 504, 505-07 [2d Dept 2002]; Stockdale v City of New York, 294 AD2d 195, 196 [2d Dept 2002].) This liability is not avoided by "a comprehensive contract for general maintenance." (See id. [Feurstein, J., dissenting].)

But prior to the adoption of Administrative Code §7-210, where a property owner "had no duty to pedestrians . . . to remove snow from the public sidewalk, since the applicable provision of the local code did not impose tort liability," a property owner would not be liable "for the creation of any dangerous condition by [an] independent contractor who removed the snow." [*7](See Caracciolo v Allstate Ins. Co., 40 AD3d 798, 799 [2d Dept 2007]; but see Martinez v City of New York, 20 AD3d 513, 514-15 [2d Dept 2005].)

With Administrative Code §7-210, property owners are now "under a statutory nondelegable duty to maintain the sidewalk" (see Cook v Consolidated Edison Co. of NY, Inc., 51 AD3d 447, 448 [1st Dept 2008].) One result is that property owners have a "non-delegable duty . . . to remove snow and ice from the sidewalk abutting the Premises, regardless of the fact that they [are] out-of-possession landlords." (See Litkenhaus v 1158 Hylan Blvd. Corp., 26 Misc 3d 19, 21 [App Term, 2d Dept 2009]; see also James v Blackmon, 58 AD3d 808, 808-09 [2d Dept 2009]; Di Natale v State Farm Mut. Auto. Ins. Co., 5 AD3d 1123, 1124-25 [4th Dept 2004].)

The City ordinance is clear in imposing a duty to maintain the sidewalk in a reasonably safe condition on "the owner of real property abutting [the] sidewalk" (see Administrative Code of City of NY §7-210 [a]), including liability for personal injury caused by "the negligent failure to remove snow, ice, dirt or other material from the sidewalk" (see id. §7-210 [b].) The property owner's liability is expressly "[n]otwithstanding any other provision of law" (see id.) Theonly exception is for the owner of "one-, two- or three-family residential real property that is . . . in whole or in part, owner occupied, and . . . used exclusively for residential purposes." (See id. §7-210 [c].) There is no exemption for an owner that enters into a "comprehensive and exclusive" contract for snow removal, and the Court sees no authority or warrant to add one.

If an abutting owner should be found liable where an injured plaintiff's sidewalk accident is "due solely to [a snow contractor's] negligent performance or non-performance of an act solely within its province," such that the owner's liability is purely vicarious, the owner should have indemnity from the contractor. (See Hites v Toys "R" Us, Inc., 33 AD3d 759, 761 [2d Dept 2006]; Baratta v Home Depot USA, Inc., 303 AD2d 434, 435 [2d Dept 2003]; see also Schultz v Bridgeport & Port Jefferson Steamboat Co., 68 AD3d 970, 972 [2d Dept 2009]; Wheaton v East End Commons Assoc., LLC, 50 AD3d 675, 678 [2d Dept 2008] ["failure to fulfill its obligations pursuant to the terms of the snow removal contract"]; Cochrane v Warwick Assoc., Inc., 282 AD2d 567, 568 [2d Dept 2001]; Salisbury v Wal-Mart Stores, Inc., 255 AD2d 951, 96-98 [3d Dept 1999].) Before adoption of Administrative Code §7-210, shared liability by way of contribution and indemnity as between the City as owner of the sidewalk and an abutting property owner was not unknown. (See D'Ambrosio v City of New York, 55 NY2d 454, 463 [1982].)

Assuming that, as Astoria contends, a "comprehensive and exclusive" snow removal contract would relieve a property owner of liability imposed by Administrative Code §7-210, Astoria fails to point to any provision in the subject "contract" establishing that Capital "has entirely displaced [its] duty to maintain the premises", including the sidewalk. (See e.g. Lehman v North Greenwich Landscaping, 65 AD3d at 1292-93; Bickelman v Herrill Bowling Corp., 49 AD3d 578, 579 [2d Dept 2008] ; Troise v New Water Street Corp., 11 AD3d 529, 530-31 [2d Dept 2004].) In determining whether a contract is "comprehensive and exclusive", courts look to whether the contractor has assumed all of the property owner's safety-related obligations with [*8]respect to the premises, or, as the case is here, the sidewalk. (See Smith v Callanan Industries, Inc., 99 NY2d 104, 113 [2002].)

In support, Astoria submits a copy of the February 9, 2006 Purchase Order, Terms and Conditions, Specifications, and a letter dated August 12, 2005. The Purchase Order provides, in pertinent part, that "[i]n accordance with the terms and conditions as defined in the Astoria Federal Savings Snow Removal Specifications, your firm will address all issues at the banking offices located in Brooklyn." As stated above, Astoria does not sufficiently establish these writings as a contract with Capital on the date of Plaintiff's fall so as to determine his rights against Astoria and Capital.

In any event, the so-called Specifications provide, in pertinent part, that Capital is to clear snow from sidewalks surrounding the premises, the entrances, lobbies, and all approaches to ATM and drive-up teller lanes; that the "basic intent of the service is to provide an accessible and safe approach to the branch for the bank's customers and employees during operating hours including access to all 24 hour ATM's"; "[s]ervice shall start at a time such that the premises will provide the customers and employees with safe and non-slippery access"; "this safe condition must be maintained throughout the operating hours which are particular to each location"; "should inclement weather conditions continue the contractor will be allowed to downscale his efforts only after the facility closes except for the ATM access and public walkways for which Astoria Federal is responsible"; and "[w]here ice conditions are encountered before, after, or with a snowfall, affected areas are to be treated with a suitable mixture of ice melt and sand so as to provide safe access to and from the branch as well as to the ATMs and parking areas." Significantly, the Specifications also provide that "sand/salt clean-up and disposal" is "not being requested at the time, nor should it be interpreted an [sic] automatic,' " and that "Astoria Federal will contact you directly if and when the lots are to be swept."

In light of the "specification" providing that Capital is not responsible for "sand/salt clean-up and disposal" and Astoria would notify Capital regarding sweeping of the lots, Astoria fails to demonstrate prima facie that the contract is "comprehensive and exclusive" such that Capital has displaced Astoria's responsibility to maintain the premises, including the sidewalk, in a reasonably safe condition, even as limited to snow and ice. Moreover, Astoria submits the deposition testimony of Sean Granholm that Astoria kept ice melt on the premises for emergency purposes during business hours. The fact that Astoria would also place ice melt under certain circumstances, in conjunction with the fact that Capital was not responsible for disposing of salt or sand would suggest that the contract was not intended to be "comprehensive and exclusive." (See e.g. Lehman v North Greenwich Landscaping, LLC, 65 AD3d at 1292-93; Brenner v Johnson Controls, Inc., 277 AD2d at 413.)

Perhaps most importantly, Administrative Code § 16-123 provides, among other things, that "[e]very owner . . . shall, within four hours after the snow ceases to fall . . . remove the snow or ice, the time between nine post meridian and seven ante meridian not being included in the above period of four hours." Astoria makes no showing that the snow removal Specifications [*9]incorporate the requirements imposed upon Astoria by Administrative Code § 16-123 with respect to clearing the sidewalk, nor does Astoria demonstrate that Capital has otherwise assumed Astoria's obligations under the Code. In the absence of an express, or clearly implied, assumption by the contractor of the owner's statutory obligations, a contract cannot be deemed "comprehensive."

Accordingly, the branch of Astoria's motion seeking summary dismissal of Plaintiff's Amended Verified Complaint and all cross-claims as against it is denied.

Having failed to demonstrate prima facie that it was free of negligence, the branch of Astoria's motion seeking summary judgment on its claims for common law or contractual indemnification from Capital is also denied. (See Aragundi v Tishman Realty & Construction Co., Inc., 68 AD3d 1027, 1029 [2d Dept 2009]; Callan v Structure Tone, Inc., 52 AD3d 334, 335-336 [1st Dept 2008].)

The branch of Astoria's motion seeking indemnification against Reliable, who has not interposed an Answer, is denied for the same reasons that Capital's motion for similar relief is denied.

In sum, Capital's and Astoria's respective motions are denied in their entirety.

April 8, 2010____________________

Jack M. Battaglia

Justice, Supreme Court