Mitchell v T1 Unison Site Mgt. LLC

[*1] Mitchell v T1 Unison Site Mgt. LLC 2010 NY Slip Op 50959(U) [27 Misc 3d 1229(A)] Decided on May 21, 2010 Supreme Court, Richmond County McMahon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 21, 2010
Supreme Court, Richmond County

Lorraine Mitchell, Plaintiff,

against

T1 Unison Site Management LLC and KIMSO APARTMENTS LLC, Defendants.



103696/2007

Judith N. McMahon, J.

This is an action for personal injuries allegedly sustained by plaintiff Lorraine Mitchell on June 24, 2007, when she slipped and fell in a stairwell at her apartment complex located at 260 Parkhill Avenue, Staten Island, New York. The plaintiff alleges that she fell on broken glass bottles and water in the stairwell of the building while on her way to church. The subject premises is owned and operated by T1 Unison Site Management, LLC and Kimso Apartments LLC (hereinafter collectively known as "Kimso"). On April 2, 2007, Kimso contracted with defendant Eastern Investigational Services, Inc. (hereinafter known as "Eastern") to provide security services at the subject premises. Plaintiff commenced this action against defendants by filing a summons and complaint on October 18, 2007.Defendant Kimso thereafter commenced a third-party action against Eastern by filing a third-party summons and complaint on or about October 27, 2008. The third-party complaint alleges that Eastern was under contract with Kimso to provide security services at the premises and had a duty to, inter alia, maintain and inspect the premises, including the stairwell. Presently defendants Kismo and third-party defendants Eastern both have motions for summary judgment to seeking to dismiss the plaintiff/third party plaintiff's claims.

It is well settled that a "proponent of a summary judgment motion must make a prima [*2]facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the movant has satisfied this burden, "the burden shifts to the [opponent] to lay bare his or her proof and demonstrate the existence of a triable issue of fact" (Chance v. Felder, 33 AD3d 645, 645-646 [2d Dept 2006]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). In this regard, the court is enjoined to accept the evidence tendered by the opposing party as true, and "must deny the motion if there is even arguably any doubt as to the existence of a triable issue" (Fleming v. Graham, 34 AD3d 525 [2d Dept 2006] quoting Barker v. Briarcliff School Dist., 205 AD2d 652, 653 [2d Dept 1994] [internal quotation marks omitted]).

"The imposition of liability in a slip-and-fall case requires evidence that the defendants created the dangerous condition which caused the accident, or that they had actual or constructive notice of that condition and failed to remedy it within a reasonable time" (Perlongo v. Park City 3 & 4 Apts., Inc.,31 AD3d 409, 410 [2d Dept., 2006]). Constructive notice requires that the condition is "visible and apparent and existed for a sufficient length of time before the accident such that it could have been discovered and corrected" (id.).

I.Defendant Kimso's Motion for Summary Judgment (Motion 001)

Here, defendant Kismo has made a prima facie showing of entitlement to summary judgment as a matter of law by demonstrating that it did not possess the requisite notice of the bottles that the plaintiff allegedly fell on (Chance v. Felder, 33 AD3d 645, 645-646 [2d Dept 2006]; Zuckerman v. City of New York, 49 NY2d 557 [1980]; Perlongo v. Park City 3 & 4 Apts., Inc.,31 AD3d 409, 410 [2d Dept., 2006]). In opposition, the plaintiff has successfully raised triable issues of fact (id.). The plaintiff testified that she fell on broken glass bottles and water located in the stairwell of the apartment complex. She also indicated that she made several complaints to the defendants regarding various conditions of the stairwell. As a result, summary judgment is inappropriate.II.Eastern's Motion for Summary Judgment(Motion 002)

Here, third party defendant Eastern has established its prima facie entitlement to summary judgment dismissing the third party complaint as against it, sounding in indemnification, as it has presented evidence that it was not negligent for the accident and that plaintiff's accident was solely attributable to the property owners (George v. Marshalls, 61 AD3d 925, 930 [2d Dept., 2009]; Kamphefner v. Allstate Security, Inc., 284 AD2d 305 [2d Dept., 2001]). Eastern has presented evidence that the contract between itself and Kismo was for security services for the property which included monitoring the premises twenty-four (24) hours a day with employees to patrol building lobbies and other common areas as needed.Emmanual Rogers, an employee of Eastern, testified that the security personal on site would note and report any maintenance issues to the maintenance department of the building but would not undertake to clean or remedy the issue themselves.

In opposition, the defendant/third-party plaintiff Kismo Apartments has failed to raise a question of fact (Chance v. Felder, 33 AD3d 645, 645-646 [2d Dept 2006]). There is no evidence that the third party defendant security company was in any way responsible for maintenance issues on the premises. The contract between Kismo and Eastern was strictly for security purposes and did not apply to maintenance issues, like the one that allegedly caused the plaintiff's accident. Further, as evidenced by the testimony of Mr. Rogers, third party defendant Eastern was not aware, nor were [*3]any prior complaints made about the alleged debris in the stairwells of the apartment complex. The contract between Kismo and Eastern was not comprehensive and exclusive' such that Kismo's obligation to maintain a safe premises was dispensed and, even assuming that Eastern did maintain a duty to remedy maintenance issues, there is no evidence of any complaints/issues regarding alleged debris in the stairwell reported to Eastern, as a result the requisite notice is lacking.

Therefore, the court finds Eastern's motion for summary judgment to dismiss the third party complaint is hereby granted (Kamphefner v. Allstate Security, Inc., 284 AD2d 305 [2d Dept., 2001] [holding that landowners duty is not discharged unless he enters into a "comprehensive and exclusive" property maintenance contract so as to displace the owner's duty]; Marasco v. C.D.R. Electronics Security & Surveillance Systems Co., 1 AD3d 578, 580 [2d Dept. 2003][ruling that the agreement between hospital and security company was not a comprehensive maintenance obligation which displaced the hospital's duty to maintain a safe premises]).

Accordingly, it is

ORDERED that the defendant T1 Unison Site Management LLC and Kimso Apartments LCC's motion for summary judgment is hereby denied, and it is further

ORDERED that third-party defendant Eastern Investigational Services, Inc's motion for summary judgement is hereby granted and the third-party complaint is dismissed in its entirety, and it is further

ORDERED that any and all additional requests for relief are hereby denied, and it is further

ORDERED that the Clerk enter Judgment accordingly.

THIS IS THE DECISION AND ORDER OF THE COURT

E N T E R,

Dated: May 21, 2010_____________________________________

Hon. Judith N. McMahon

Justice of the Supreme Court