Williams v Jeffrey Mgt. Co.
Annotate this CaseDecided on October 13, 2010
Supreme Court, New York County
Robert J. Williams AND PATRICIA WILLIAMS, Plaintiffs,
against
Jeffrey Management Company AND 3601 TURNPIKE ASSOCIATES, Defendants.
101686/00
Attorney for the Plaintiff:
Philip J. Dinhofer, LLC
77 N. Centre Avenue, Suite 311
Rockville Centre, New York 11570
Attorney for the Defendants:
Margaret G. Klein & Assocs.
200 Madison Avenue 2nd Floor
New York, New York 10016
Callan Koster Brady & Brennan
One Whitehall Street - 10th Fl
New York, New York 10004
Paul Wooten, J.
In this negligence action, third-party defendant Pathmark Stores, Inc. f/k/a Supermarkets General Corp. (Pathmark) moves, (1), pursuant to CPLR 3211 (a) (1), (a) (2) and (a) (7), for an order dismissing the third-party complaint of third-party plaintiffs, Jeffrey Management Company (JMC) and 3601 Turnpike Associates (3601 TA); and (2) pursuant to CPLR 3212, for an order granting it summary judgment.
This action is premised upon an incident wherein plaintiff Robert J. Williams (Williams), a Pathmark employee and night manager, was injured on August 21, 1997, when he fell while working on the loading dock of a Pathmark store located at 3635 Hempstead Turnpike in Levittown, New York (the Pathmark tenancy). The building where the Pathmark tenancy was is owned by the Nassau Mall Plaza Associates (the Nassau Mall), a non-party landlord.
Williams was attempting to close the doors at the Pathmark truck bay so as to prevent rain from entering into the Pathmark tenancy from the loading dock area. Williams stated during his deposition that the loading dock area became slippery if it got wet, and that he slipped and injured himself when it was raining and as water was pouring onto the loading dock (see Notice of Motion, Exhibit D, at 23, line 19 through 24, line 17). Prior to his accident, Williams had informed a Pathmark supervisor that it got very dangerous in the loading dock area when it rained (id. at 43, line 7 through 44, line 15). He stated that, before he fell, he was attempting to lift a portable metal bridge plate so he could close the loading dock doors. He stepped on a foam-rubber bumper attached to the loading dock, which caused something to collapse and resulted in his fall. The bumper was for the purpose of preventing the trucks from hitting the loading area. The loading dock remained unrepaired after his accident but a new bridge plate system was put in two years after his accident. He did not know who was responsible for the plate repair (id. at 47- 49). The building housing the Pathmark tenancy has since been demolished. There were no witnesses when he fell. It is undisputed that it was raining at the time of his injury. Williams filed an accident report with Pathmark.
JMC is a commercial property management company. It managed the properties belonging to the Nassau Mall and co-defendant 3601 TA. 3601 TA, which owned property adjacent to the Nassau Mall, is an entity which is totally separate from the Nassau Mall.
In the Williams's complaint, it is alleged that JMC and 3601 TA (hereinafter JMC/3601) owned, operated, maintained, managed and were in control of the premises identified as 3635 Hempstead Turnpike. In its answer, JMC/3601 denied each one of the aforesaid allegations. Subsequent to the commencement of Williams's action against JMC/3601, it brought a third-party action against Pathmark. In the third-party complaint, JMC/3601 alleges causes of action in negligence, common-law indemnification, contractual indemnification and breach of contract.
Pathmark's reply affirmation implies that the third-party contractual allegations, including a
duty, if any, to maintain the loading dock, arise from a 1988 lease (the lease) between Pathmark
and the Nassau Mall (see Notice of Motion, Exhibit G; Reply Affirmation, ¶ 8).
The original lease was between Pathmark's predecessor, Supermarkets General Corp. (SGC), and
the Nassau Mall. JMC was not a signatory to the 1988 lease, nor was 3601 TA. There was no
specific management company listed in the lease. There is no privity between JMC and
Pathmark. There is absolutely no nexus between 3601 TA and the Pathmark tenancy where
Williams fell.
[*2]
DISCUSSION
On a defendant's motion for summary judgment, the evidence should be liberally construed in a light most favorable to the plaintiff (Ansonia Assoc. Ltd. Partnership v Public Serv. Mut. Ins. Co., 257 AD2d 84, 89 [1st Dept 1999]). "[I]ssue finding, rather than issue-determination, is the key to the procedure and the motion should not be granted where there is any doubt as to the existence of a genuine factual issue" (Insurance Company of New York v Central Mutual Insurance Co., 47 AD3d 469, 472 [1st Dept 2008]). The court file reflects that the discovery evidence before the court includes deposition testimony from all parties, except Pathmark, and a copy of the lease between Pathmark and the Nassau Mall.
JMC/3601 argues that Pathmark's motion, as a whole, is premature, as Pathmark has not yet appeared for a deposition pursuant to multiple court orders (see Afzal v Board of Fire Commissioners of Bellmore Fire District, 23 AD3d 507 [2nd Dept 2005]; Gonzalez v Vincent James Mgt. Co., 306 AD2d 226 [1st Dept 2003]). It states that Pathmark's deposition is necessary (1) to determine Pathmark's obligations under the lease, i.e., responsibility for maintenance of the loading dock where the incident occurred; and (2) citing to Picchione v Sweet Construction Corp. (60 AD3d 510 [1st Dept 2009]), "to clarify the extent to which the lease included obligations to the landlord's agents, and such agents' entitlement to indemnification" under an indemnification clause in the lease (see Affirmation in Opposition, ¶ 8; Notice of Motion, Exhibit G, section 14 [E], at 40).
Pathmark suggests that the third-party complaint should be dismissed, pursuant to CPLR 3211 (a) (1), based upon documentary evidence, i.e., the lease itself, and pertinent sections within the lease. It argues that its deposition is not necessary as the lease language itself will provide clarification regarding Pathmark's responsibility for maintenance of the loading dock. It contends that JMC's claim for contractual indemnification from Pathmark must be dismissed, as a matter of law, as there is no written agreement containing an indemnification clause in favor of JMC (see Reply Affirmation, ¶ 2). It also argues that the indemnification clause in the lease is invalid pursuant to both General Obligation Law §§ 5-322.1 and 5-321.
Contract interpretation is a legal matter for the court to decide, not a factual issue for the trier
of fact (see Thomas Crimmins Contracting Co. v City of New York, 138 AD2d 138, 143
[1st Dept 1988], affd 74 NY2d 166 [1989]; Joseph Davis, Inc. v Merritt-Chapman &
Scott Corp., 27 AD2d 114, 118 [4th Dept 1967]).
MAINTENANCE
Regarding the Nassau Mall's duty to maintain the loading dock, the court looks to the lease and the deposition of JMC's witness, Linda Coneys, who managed the Nassau Mall property. She referred to subsection 10 (C) of the lease during her deposition. Section 10, entitled, "Repairs and Alterations of the Building and Improvements," authorized Pathmark, in subsection 10 (C), only "with the consent of the Landlord," to construct secondary entrances to the Pathmark store. Coneys interpreted this contract clause as imposing on Pathmark the responsibility for maintenance of the loading dock at the Pathmark tenancy (see Notice of Motion, Exhibit G, at 27, line 8 through 28, line 20, and 35, lines 16-20).
However, section 13 of the lease, entitled "Operation and Condition of the Shopping Center,"
stated, in subsection13 (B) (iv), that the "Landlord shall maintain or cause to be maintained in
good operating condition, order and repair ... the common areas and the [*3]improvements related thereto as provided in section 7." Section 7
(A) provided that the "common areas" include "truck tunnels and passageways" and "all exterior
ramps." More importantly, regarding the landlord's maintenance obligations as specifically
related to the "Tenant's loading docks," section 13 (B) (v) (ii) delineates the following as the
Nassau Mall's duty:
Repairing and replacing any surface paving whenever necessary,
keeping the same and Tenant's loading docks properly drained and free
of snow, ice, water, rubbish and other obstructions, and in neat, clean,
orderly and sanitary condition....
(see Notice of Motion,
Exhibit G, at 31 [emphasis added]).
The court reiterates that Williams's deposition colloquy reflects that his accident occurred
while it was raining and his actions prior to the accident were done as a reaction to water coming
onto the loading dock and into the tenancy. This court finds that the contract language in section
13 (B) (v) (ii) of the lease, on its face, indicates that it was the Nassau Mall's responsibility to
maintain and keep the loading dock properly drained when it rained.
INDEMNIFICATION
The record reflects that Williams received workers' compensation benefits and is still working for Pathmark. Ordinarily, the court does not have original jurisdiction to entertain an action by an employee against his employer or co-employee for damages flowing from an injury incurred during the course of employment. Exclusive jurisdiction resides with the Worker's Compensation Board (Sicktish v Vulcan Industries of Buffalo, Inc., 33 AD2d 975, 975 [4th Dept 1970]; see also Rivera v Lopez, 167 AD2d 953 [4th Dept 1990]). A complete defense to a third-party action is that the employer is protected by the exclusive remedy doctrine. The Workers' Compensation Law applies to impleader actions brought by third parties (see Minkowitz, Practice Commentaries, McKinney's Cons Laws of NY, Book 64, Workers' Compensation Law § 11, at 447-448).
Under CPLR 3211 (a) (2), a party may move for judgment dismissing one or more causes of action on the ground that the court has no subject matter jurisdiction of the cause of action. Here, Pathmark suggests that the third-party complaint should be dismissed pursuant to Workers' Compensation Law § 11 because Williams received workers' compensation benefits, and he does not fall within any of the exceptions which would allow an employee to sue his employer.
The exceptions listed under the Workers' Compensation Law, are (1) the employer did not maintain coverage as required by Workers' Compensation Law §§ 10 and 50; (2) the injuries resulted from an intentional tort perpetrated by, or at the direction of, an employer, such intentional act being more than gross negligence or reckless conduct; or (3) citing to Dole v Dow Chemical Co. (30 NY2d 143, 152 [1972]), the employee's suit is for grave injury (see Minkowitz, Practice Commentaries, McKinney's Cons Laws of NY, Book 64, Workers' Compensation Law §11, at 445-447).
Grave injury is inapplicable here. Pathmark asserts that Williams did not sustain a grave injury pursuant to New York Workers' Compensation Law § 11. JMC/3601 concedes that it has not asserted its third-party complaint upon a grave injury argument, but has based its third-party complaint only upon Pathmark's alleged contractual obligation to defend and indemnify it pursuant to the 1988 lease (see Affirmation in Opposition, ¶ 3). The 1996 Dole decision, [*4]limiting the liability of an employer for contribution or indemnification to suits alleging grave injury, applies to impleader actions (see Minkowitz, Practice Commentaries, McKinney's Cons Laws of NY, Book 64, Workers' Compensation Law §11, at 447).
However, Minkowitz's commentary provides that, "[i]f the employer has a contract, prior to the accident, in which it agreed to indemnify or contribute to payment for a loss by the employee, that agreement is not affected by this amendment prohibiting impleader [even] if there is no grave injury" (see Minkowitz, Practice Commentaries, McKinney's Cons Laws of NY, Book 64, Workers' Compensation Law § 11, at 448). Here, the 1988 lease, which has an indemnification clause on behalf of the landlord, is such an agreement, and as such, does not prohibit the commencement of the third-party complaint. Pathmark's claim that "the third-party action against Pathmark for indemnification or contribution is barred by New York Workers' Compensation Law" (see Reply Affirmation, ¶ 2), is inapplicable.
Pathmark also argues in its motion that the indemnification clause in lease section14 is void pursuant to GOL §§ 5-321 and 5-322.1. Pathmark's reply affirmation is silent on its motion allegation that the indemnification clause violates GOL § 5-322.1, and instead briefly argues that the indemnification clause violates GOL § 5-321. The court notes that GOL § 5-322.1, entitled, "Agreements exempting owners and contractors from liability for negligence void and unenforceable; certain cases," is applicable to agreements for the construction, repair or maintenance of a building, structure or appurtenance. GOL § 5-321 entitled "Agreements exempting lessors from liability for negligence void and unenforceable," provides: Every covenant ... in connection with ... any lease of real property exempting the lessor from liability for damages for injuries to person ... caused by or resulting from the negligence of the lessor, his agents, servants or employees, in the operation or maintenance of the demised premises or the real property containing the demised premises shall be deemed to be void as against public policy.
Section 14 (B) of the lease provides that the then
tenant, SGC, and its successors (herein Pathmark):
shall, at its own cost and expense, through out the term hereof, maintain, with
respect to the demised premises, public liability insurance, naming as insured or additional
insured and protecting Landlord and Tenant against all claims for personal injury, death, and
property damage occurring thereon ... .
Section 14 (E) further provides:
Tenant agrees during the Term to indemnify and hold Landlord harmless
from and against any loss or damage that Landlord may sustain on account of any
personal injury or property damage upon or within that part of the Demised Premises in respect
of which the term has commenced excepting any loss or damage resulting from or
growing out of any act or omission of Landlord, its agents, invitees, servants or
employees [provided, however, that in respect of any claim on account of personal injury or
property damage which Tenant is covering by self insurance or carrying as a deductible as
permitted hereunder, Tenant agrees to defend such claim and to indemnify and hold Landlord
harmless from any loss or damage on account of such claim irrespective of whether such claim
results from or grows out of any act or omission of Landlord, its [*5]agents, invitees or employees]
(bracketed
portion quoted by Pathmark [emphasis added]). In reference to the bracketed portion, the court
notes that the motion papers do not reflect that Pathmark was self-insured.
JMC/3601 cites to Picchione v Sweet Construction Corp. (60 AD3d 510, supra), Great Northern Insurance Co. v Interior Construction Corp. (7 NY3d 412 [2006]) and Hayes v City of New York (279 AD2d 610 [2d Dept 2001]). It cites to Hayes for the proposition that there is no GOL § 5-321 violation because the clause "specifically states that it does not cover any loss or damages resulting from or growing out of any act or omission of, Landlord, its agents, invitees, servants or employees," and to Great Northern for the proposition that the indemnification clause is valid because it "is linked with an insurance procurement requirement for Pathmark."In Hayes, the Appellate Division found that the indemnification clause at issue was enforceable under GOL § 5-321 because it only covered a "loss caused by the negligent acts of the tenant and/or its employees" (see Hayes v City of New York, 279 AD2d at 610). In Great Northern, the Court of Appeals concluded that, because the indemnification clause at issue between the lessor and a lessee was coupled with an insurance procurement provision allocating the risk of liability between themselves, there was no violation of GOL § 5-321 (Great Northern Insurance Co. v Interior Construction Corp., 7 NY3d at 419). It noted that the precedent for such an application of GOL § 5-321 was its own determination in Hogeland v Sibley, Lindsay & Curr Co. (42 NY2d 153 [1977]). The Hogeland jury awarded damages after allocating percentages of fault to the tenant and landlord, and the landlord sought indemnity from the tenant pursuant to an indemnification clause in the lease.
The Court of Appeals, in analyzing the alleged GOL § 5-321 violation, found that the
lessor and lessee were sophisticated parties and that the landlord had not exempted itself from
liability to the victim or the public for its own negligence, but instead, had allocated "the risk of
liability to third parties between themselves, essentially through the employment of insurance"
(Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d at 161; Great Northern Insurance
Co. v Interior Construction Corp., 7 NY3d at 419). "Where, as here, a lessor and lessee freely
enter into an indemnification agreement whereby they use insurance to allocate the risk of
liability to third parties between themselves, GOL § 5-321 does not prohibit indemnity"
(Great Northern Insurance Co. v Interior Construction Corp., 7 NY3d at 419). Here, like
in Hogeland and Great Northern, the indemnity clause at issue, as reflected in
subsections 14 (B) and 14 (E), does not violate GOL § 5-321, and cannot serve as a basis
for dismissing the action. "Indemnification agreements, when coupled with a provision allocating
the risk of liability to a third party through the use of insurance, are valid and enforceable and do
not violate General Obligations Law §§
5-321, 5-322, 5-322.1, 5-323 and 5-325, which [otherwise] invalidate agreements
exempting the promisee from liability for damages for injuries resulting from the promisee's own
negligence" (Santamaria v 1125 Park Ave. Corp., 238 AD2d 259, 260 [1st Dept 1997]).
While the indemnification agreement in the lease is valid, JMC/3601's reliance on its position that the indemnification agreement is both valid and also applicable to it, is nonetheless misplaced. In Picchione, the First Department found that "[w]hile [the] managing agent ... was not a party to the lease, the provision nonetheless indemnified it as the owner's agent'" (Picchione v Sweet Construction Corp., 60 AD3d at 513). "Such an indemnity provision does not run afoul of General Obligations Law § 5-322.1" (ibid.). While Picchione found that the [*6]indemnification provision was valid under the GOL and that the indemnity clause was applicable to both the landlord and the managing agent, that case is distinguishable from the case at bar, in that, in Picchione, the managing agent was specifically referenced along with the Landlord in the indemnity clause of that underlying lease, whereas here, it was not. In section 14 (E), the tenant agrees to indemnify and hold harmless only the "Landlord." The only reference to a managing agent in section 14 (E) is in the phrase "excepting any loss or damage resulting from or growing out of any act or omission of Landlord, [or] its agents." The indemnification clause in the lease is applicable to Nassau Mall but not its managing agent, JMC. The court reiterates that the Nassau Mall is not a party in this action, and that there is no privity between Pathmark and either JMC or 3601 TA. There is no cause of action under CPLR 3211 (a) (7), or a triable question of fact under CPLR 3212.
Accordingly, based on the aforesaid, it is
ORDERED that third-party defendant Pathmark's motion for summary judgment is granted and the third-party complaint is dismissed with costs and disbursements to third-party defendant as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly.
ORDERED that third-party defendant Pathmark shall serve a copy of this order with notice of entry upon all parties.
This constitutes the Decision and Order of the Court.
Dated: October 13, 2010
Paul Wooten
J.S.C.
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