Tanton v Lefrak SBN Ltd. Partnership
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Tanton v Lefrak SBN Ltd. Partnership 2013 NY Slip Op 30126(U) January 23, 2013 Supreme Court, New York County Docket Number: 106601/08 Judge: Debra A. James Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY f PRESENT: DEBRA A. JAMES PART 59 Justice Index No.: HARVEY TANTON a n d MALENEA COLONNA, Plaintiff, 106601108 Motion Date: 03/23/12 Motion Seq. No.: -v- 04 LEFRAK SBN LIMITED PARTNERSHIP, BAY LEAF ENTERPRISES, LTD. , BENIHANA N . Y . RESTAURANTS C O R P . , NOBU 5 7 , LLC, a n d TEMCO SERVICE INDUSTRIES, I N C . , Defendant. JAN 25 2Ol3 The following papers, numbered 1 to 7 were read on this motion for summary 4 Notice of Motion/Order to Show Cause -Affidavits -Exhibits No(s). ; Answering Affidavits - Exhibits No(s). i Replying Affidavits - Exhibits No(s). i Yes Cross-Motion: 1 2,3,4 5,6,7 No Upon the foregoing papers, it is ordered that this motion i s Motion s e q u e n c e numbe'rs 0 0 4 , 0 0 5 , and 0 0 6 a r e c o n s o l i d a t e d for disposition. I n t h i s a c t i o n f o r p e r s o n a l i n j u r i e s , p l a i n t i f f Harvey T a n t o n a l l e g e s t h a t , o n J u n e 2 8 , 2 0 0 7 , h e s l i p p e d a n d fell on g r e a s e on t h e s i d e w a l k i n f r o n t o f 4 0 West 56th S t r e e t , N w Y o r k , e New York ( t h e premises). L e f r a k SBN L i m i t e d P a r t n e r s h i p ( L e f r a k ) i s t h e owner o f t h e premises. 1. CHECK ONE: .... .. . . . . . .. . . 2. CHECK AS APPROPRIATE: MOTION IS: 3 CHECK IF APPROPRIATE: . CASE DISPOSED GRANTED 0 DENIED . . . . . . . " , 0 SETTLE ORDER DO NOT POST NON-FINAL DISPOSITION GRANTED IN PART 0 OTHER SUBMIT ORDER 0 FIDUCIARY APPOINTMENT REFERENCE [* 2] Bay Leaf Enterprises, Ltd. (Bay L e a f ) , Nobu 57 LLC (Nobu) , and Benihana N.Y. Restaurants Corp. (Benihana) lease space f o r their restaurants within such premises. Lefrak retained Temco Service Industries, Inc. (Temco) to clean and maintain the subject premises and sidewalks abutting the premises. Pursuant to a written contract dated January 29, 1991 with Lefrak, Temco was required, among other things, to "[slweep sidewalks and police during the day, including Plaza areas" and " [h].ose sidewalks as necessary". The written contract contains an indemnification provision and insurance procurement provision. It is undisputed that the written contract between L e f r a k and Temco e x p i r e d by its terms on December 31, 1992, and that Temco continued to provide services at the premises. On May 13, 2008, plaintiff commenced this action against Lefrak, Bay Leaf, Benihana, and Nobu. He asserts in his bill of particulars that defendants, inter alia, negligently maintained the sidewalk in the area where garbage was placed for collection and thereby caused a dangerous slippery condition upon which he slipped and fell and suffered a fractured left ankle. On November 3, 2009, Lefrak commenced a third-party action against Temco, seeking indemnification and contribution. Thereafter, plaintiff brought a separate action against Temco in this court under Index No. 118196/09. On July 21, 2010, the c o u r t consolidated the second action against Temco with this action. -2- [* 3] Defendants a s s e r t the following cross claims: (1) Lefrak asserts cross claims for contractual indemnification, common-law indemnification, contribution, and failure to procure insurance against Bay Leaf, and Temco asserts cross claims for common-law indemnification and contribution against Bay Leaf; (2) Lefrak pleads cross claims for contractual indemnification, common-law indemnification, contribution, and failure to procure insurance against Nobu, and Temco also seeks common-law indemnification and contribution from Nobu; and (3) Temco seeks common-law indemnification and contribution from Lefrak. In motion sequence number 004, Bay Leaf moves, pursuant to CPLR 3212, f o r summary judgment dismissing the complaint and a l l cross claims against it. In motion sequence number 005, Nobu moves, pursuant to CPLR 3212, for summary judgment dismissing all claims against it. In motion sequence number 006, Temco moves, pursuant to CPLR 3212, f o r summary judgment dismissing the complaint and all cross claims asserted against it. In motion sequence number 006, Lefrak cross-moves, pursuant to CPLR 3212, f o r summary judgment dismissing plaintiff's complaint and all cross claims against it and f o r a conditional order of indemnification against Temco. In moving for summary judgment, Bay Leaf argues that it did not owe plaintiff a duty to maintain the sidewalk, and that it neither caused nor created the g r e a s y condition of the sidewalk. -3- [* 4] Specifically, Bay Leaf maintains that it placed its garbage o n l y in front of its restaurant, and not in the arcade where plaintiff fell. Bay Leaf further argues that though plaintiff contains t h e stain on the sidewalk is grease, there is no evidence that s u c h so and therefore there is no evidence that Bay Leaf had notice of any greasy condition. Bay Leaf argues that plaintiff n e w e r saw anyone place garbage on the sidewalk, and thus does not know whose garbage created the greasy condition. Finally, Bay Leaf contends that it had no notice of the greasy condition. In opposition, plaintiff argues that there are triable issues of fact as to whether Bay Leaf created the g r e a s y condition of the sidewalk, and in support submits an affidavit from Stanley F. Fein, P . E . , November 17, 2009. who inspected the sidewalk on Fein opines, within a reasonable degree of engineering certainty, that: the sidewalk area where this accident occurred and the stain on the sidewalk area was due to an accumulation of o i l and/or another greasy type substance which was coming from the garbage bags which were placed on the sidewalk by the owners of the building, Lefrak, the cleaning company Temco and the adjacent restaurants, Benihana, Bay Leaf, and Nobu 57 LLC restaurants. Fein explains that: [tlhe sidewalk in the stained area was made of concrete and the stains that were in existence were definitely oil stains and not water stains. Concrete is absorbent and water would not stain the concrete. Only oil could have caused the stains on the sidewalk and therefore the only way the oil could have stained the sidewalk was if the garbage which had been leaking, would be placed along the sidewalk area. -4- [* 5] In support of his argument that Bay Leaf created the condition, plaintiff points out that he testified that he was unsure where exactly he fell. In addition, plaintiff argues that Bay Leaf had notice of the recurrent and defect'ive condition of the sidewalk, given plaintiff's own deposition testimony that he previously noticed debris or garbage in the area, and that there contends that Bay Leaf may be liable for negligent maintenance of that Bay Leaf may have created the condition when it washed the sidewalk. It is undisputed that Bay Leaf is a lessee of space abutting c o b o n law rule: Liability may o n l y be imposed on the abutting owner or lessee for injuries sustained as a result of a dangerous condition in the sidewalk where the abutting Owner or lessee 'either created the condition, voluntarily but negligently made repairs, caused the condition to occur because of some special use, or violated a statute or ordinance placing upon the owner or lessee the obligation to maintain the sidewalk which imposes liability upon that party f o r injuries caused by a violation of that duty' (Berkowitz v S p r i n a Cr., Inc., 56 AD3d 594, 595-596 [2d Dept 20081, quoting Lowenthal v Theodore H. Heidrich Realty Coro., 304 AD2d 725, 726 [2d Dept 20031). -5- [* 6] Administrative Code 5 7-210, entitled Liability of r e a l property owner for failure to maintain sidewalk in a reasonably safe condition, provides that: a. It shall be the duty of the Owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, to maintain such sidewalk in a reasonably safe condition. b. Notwithstanding any other provision of law, the O w n e r of real property abutting a n y sidewalk, including, but not limited to, the intersection quadrant f o r corner property, shall be liable f o r any injury to p r o p e r t y or personal injury including death, proximately caused by the f a i l u r e of such o w n e r to maintain such sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags a n d t h e negligent failure to remove snow, ice, dirt or other material from the sidewalk. . . . I, Here, Bay Leaf has shown that, as a lessee, it did not violate any ordinance or statute dr have a duty to maintain the n o t create the greasy condition on the sidewalk. Bay Leaf s president, Vijay Gupta, testified that Bay Leaf placed its garbage in front of its restaurant on 56th Street. Gupta also testified that all disposable f o o d garbage was placed in l a r g e garbage bags and s e c u r e d by tying a knot to the bag. - 6- Plaintiff [* 7] of the arcade l e a d i n g between 56th and 57th Streets and not in front of Bay L e a f ' s restaurant on 56th Street. Nor is there any evidence that Bay Leaf made a special use of the sidewalk at the location in question, let alone, some such use that caused the condition to occur. (see Lonez v Citv of New York, 19 A D 3 d 3 0 1 [lst Dept 2 0 0 5 1 ) . Nor does Fein's expert affidavit rescue plaintiff's cause of action against Bay Leaf. It is well settled that an expert's opinion "'must be based on f a c t s in the r e c o r d or personally known to the witness"' (Hambsch v New York C i t v Tr. Auth., 63 NY2d 723, 725-726 [1984], quoting Cassano v Haqstrom, 5 N Y 2 d 643, 646, r e a r g denied 6 N Y 2 d 882 [1959]). Furthermore, the court may not accept the conclusion of an expert that assumes material facts not supported by the e v i d e n c e , and may not guess or speculate in drawing a conclusion (Santoni v Bertelsmann Prop., Inc., 21 A D 3 d 712, 7 1 4 - 7 1 5 [ l s t Dept 2 0 0 5 3 ; Quinn v Artcraft Constr., 203 A D 2 d 444, 4 4 5 [ 2 d Dept 19941). Here, Fein cites no factual basis for h i s conclusion that the grease on the sidewalk was caused by an accumulation of oil and/or another greasy t y p e substance which originated from Bay Leaf's garbage bags. Therefore, Fein's affidavit is insufficient to raise a triable issue of fact as to whether Bay Leaf c r e a t e d t h e grease on the sidewalk. -7- [* 8] Moreover, while plaintiff maintains that Bay Leaf had notice I of the condition, a b s e n t creation, special use, or any of the other factors outlined above, a lessee of property abutting a public sidewalk may not be liable even if it had notice of the condition (see Berkowitz, 56 AD3d at 595-596). photograph marked at his deposition- but that it placed its garbage between two trees in that photograph. In addition, Nobu asserts that its garbage was double-bagged and placed on top of clear plastic liners on the sidewalk. Nobu further contends that it did not owe plaintiff a duty to maintain or clean the I sidewalk, and that plaintiff assumed the risk of his injury because he previously noticed debris or grease in the area. In opposing Nobu s motion, plaintiff a r g u e s that there are triable issues o f fact as to whether Nobu created the greasy condition on the sidewalk. To support this argument, plaintiff maintains that he could not pinpoint the exact location where he fell, and that the area of the grease stain is significant and -8- [* 9] covers a large portion of the sidewalk where he fell. Plaintiff again relies on the affidavit from Stanley F e i n , P . E . , which concludes that the defective condition of the sidewalk was caused by an accumulation of oil and/or another greasy type substance which came from garbage bags which were p l a c e d on the sidewalk by Lefrak, Temco, Benihana, Bay Leaf, and Nobu. Plaintiff f u r t h e r contends that Nobu had notice of the recurrent, greasy condition of the sidewalk, and that comparative negligence is an issue of fact for the jury. As previously stated, a lessee of property abutting a public sidewalk, such as Nobu, may be held liable only if it "either created the [dangerous] condition, voluntarily b u t negligently made repairs, caused the condition to occur because of some special use, or violated a statute OF ordinance placing upon the owner o r lessee the obligation to maintain the sidewalk which imposes liability upon that party for injuries caused by a violation of that duty" (Berkowitz, 56 AD3d at 595-596 [internal quotation marks and citation omitted]). In this case, Nobu has demonstrated that, as a lessee, it did not have a d u t y t o maintain the sidewalk where plaintiff fell (see Administrative Code 5 7 - 2 1 0 ) . Nobu has also made a prima facie showing that it did not create the g r e a s y condition on t h e sidewalk. Plaintiff testified at his deposition that he fell on the sidewalk between an o r a n g e cone and a garbage can depicted in -9- [* 10] a photograph marked at his deposition. Nobu's back-of-the-house manager, Wilber Wever, testified that it placed its garbage between two t r e e s , and that it double-bagged its garbage and placed it on top of clear plastic liners on the sidewalk. Though plaintiff again argues that there is an issue of fact as to where he fell, he testified that he fell between an orange cone and a garbage can. N O K has he disputed Nobu's garbage disposal regimen. In addition, there is no evidence that Nobu caused the condition to occur through a special use of the sidewalk (see L o p e z , 19 AD3d at 301). As with Bay Leaf, Fein's opinion that "the sidewalk area where this accident occurred and the stain on the sidewalk area was due to an accumulation of oil and/or another greasy type substance which was coming from the garbage bags which were placed outside on the sidewalk by the owners of the building, Lefrak, the cleaning company Temco and the adjacent restaurants, Benihana, Bay Leaf a n d Nobu 57 LLC restaurants", is speculative, conclusory, and unsupported by facts in the record, and thus insufficient to raise a triable issue of fact as to whether Nobu created the greasy condition. In view of the above, Nobu has established entitlement to summary judgment dismissing the complaint. Temco moves f o r summary judgment, arguing that it did n o t owe plaintiff a duty of care, because: (1) t h e r e is no evidence -10- [* 11] that it created the greasy condition, (2) plaintiff did n o t detrimentally rely on the continued performance of its contract, and (3) Temco did not entirely displace Lefrak's duty to maintain the premises safely. Temco contends that Lefrak hired many hired to perform cleaning, and by affidavit of Peter Chace, Temco's Day Area Manager, states that L e f r a k ' s property manager, Kevin Perdreaux, had exclusive authority and control over the work performed by Temco. Furthermore, Temco maintains that, even assuming that it owed a duty to plaintiff, it d i d not have actual argues that Fein's e x p e r t affidavit s h o u l d be disregarded as speculative and conclusory. Temco also contends that it did n o t "launch a force or instrument of harm" because it cleaned the sidewalk every morning, and that the discolored portion of the sidewalk was not slippery, and therefore it did not have condition. In opposition, plaintiff argues that Temco had a comprehensive and exclusive obligation to maintain the premises. Plaintiff points out that Temco was the only party contracted to clean the premises where plaintiff fell. Plaintiff also argues t h a t Temco failed to exercise reasonable care in the performance of its d u t i e s , and launched a force or instrument of harm, given -11- [* 12] Temco's day manager's testimony that the sidewalk area was discolored, that he did not know why the area was discolored, but that was where the garbage was put out. Alternatively, plaintiff contends that Temco had actual notice of t h e recurrent condition of the sidewalk, in view of h i s testimony that his clothes and hand were dirty after his fall, coupled with the testimony of his co-workers that there was always a residue left on the curb and that he was "covered w i t h grease'' after his accident. Generally, a contractual obligation, standing alone, does not give rise to tort liability in favor of a third party (Church v Callanan Indus., 99 N Y 2 d 104, 111 f20021; EsDinal v Melville Snow Contrs., 98 N Y 2 d 136, 1 3 8 [2002]). However, there are three exceptions to this general rule: (1) "where the promisor, while engaged affirmatively in discharging a contractual obligation, . creates an unreasonable risk of harm to others, or increases that risk" (Church, 99 N Y 2 d at 111); ( 2 ) "where the plaintiff has suffered injury as a result of reasonable reliance upon the defendant's continuing performance of a contractual obligation" ( i d . ) ; and (3) "where the contracting party has entirely displaced the other party's duty to maintain t h e premises safely" (id. at 112 [internal quotation marks and citation omitted]). Plaintiff relies on the first and third exceptions to the general rule, arguing t h a t Temco was the only contractor hired to clean the premises and that it may have created the condition. -12- [* 13] Under the third exception, a defendant may owe a duty of care where it has a comprehensive and exclusive contractual obligation to inspect and maintain the premises safely (Palka v Servicemaster Mut. Servs. Corp., 8 3 NY2d 579, 588 [1994]). Stated otherwise, the contractor must have entirely displaced the landowner s duty to maintain the premises safely (EsDinal, 98 N Y 2 d at 141). In Colrrales v Reckson Assoc. R e a l t y Corp. (55 AD3d 469 [lst Dept 2 0 0 8 1 ) , the plaintiff slipped and fell on an oily substance on the plaza outside an office building. The building owner and manager hired a maintenance contractor to provide cleaning services for the interior and exterior of the building. The Court held that the maintenance contractor did not owe a duty of care to the plaintiff, noting that the contractor s contract with the owner was not comprehensive and exclusive as to preventative maintenance, inspection and repair, and that the [owner s] onsite property manager retained responsibility f o r and control over maintenance and safety of the premises (id. 470). at In Jackson v Board of Educ. of Citv of N.Y. ( 3 0 A D 3 d 57 [Ist Dept 2006]), the plaintiff, a utility worker, slipped and f e l l on a food substance at a college and commenced an action, inter alia, against the college s janitorial services contractor. The First Department held that a janitorial services contractor d i d not owe a duty of care to plaintiff. -13- Specifically, the Court [* 14] held that the contractor's contract was not comprehensive because it did not assume a blanket responsibility for the entire college campus, and since the contractor's contract was not exclusive because plaintiff's employer was required to perform cleaning at duties in that area (id. 65-66). Here, Temco's limited contractual undertaking was not a comprehensive and exclusive property maintenance obligation which entirely displaced Lefrak's duty to maintain the premises. It is undisputed that Temco's written contract with Lefrak expired, and that Temco continued to work at the premises pursuant to an oral agreement. Kevin Perdreaux, Lefrak's p r o p e r t y manager, testified that, in June 2007, Temco was required to maintain the exterior and interior of the building in a clean fashion. Peter Chace, Temco's employee, indicates that Lefrak retained supervision and control over Temco's work. However, the court concludes that there are triable issues of fact as to whether Temco failed to exercise reasonable care in the performance of its cleaning duties, and launched a force or instrument of harm (see Moch Co. v Rensselaer Water Co., 247 NY 160, 168 [19281; Espinal, 98 N Y 2 d at 142 [a contractor who "creates or exacerbates" a harmful condition may be said to h a v "launched" it] ) . Plaintiff testified that " clothes being dirty and my hand touching the [o] ther than my - something, I didn't know what it was and my hand being dirty. -14- I don't know ! [* 15] what it was, but there was some substance on the sidewalk". Plaintiff's co-worker, Donald Hoffman, testified that when he saw plaintiff after his fall, plaintiff was "covered with grease". However, Ternco's p o r t e r testified that Temco cleaned the sidewalk e v e r y day by 6 : 3 0 A.M. by washing the sidewalk with a hose, b r u s h i n g it, and applying a degreaser. Therefore, Temco's motion f o r summary judgment dismissing the complaint must be denied Cornell v 360 W. 51St S t . Realtv CorD., 51 A D 3 d 469, (see 470 [Ist Dept 2 0 0 8 1 [plaintiff's allegation that subcontractor negligently removed demolition debris from building fell within exception to general rule of negligent creation or exacerbation by launching a force or instrument of harm]). Lefrak cross-moves for summary judgment dismissing plaintiff's complaint and for a conditional order of indemnification a,gainst Temco. In so moving, Lefrak points out that, although its cross motion is untimely, it should be considered on the merits because its co-defendants made motions for summary judgment on nearly identical grounds and seek nearly identical relief. Lefrak further argues that there is no evidence that it created the greasy condition, and that the testimony of its building manager establishes that it had no notice of the condition. Lefrak points out that Temco's cleaning crew would have cleaned the sidewalk area sometime between 6:OO and 6 : 3 0 -15- [* 16] A.M., or about an hour-and-a-half before plaintiff fell. Lefrak argues that, even if plaintiff could establish notice, the evidence establishes that it cannot bear liability for plaintiff's injury pursuant to Administrative Code 55 7-210 and 19-101, because his accident occurred in an area over which it had no duty of care. In support of this argument, Lefrak contends that plaintiff testified that he fell as he was "walking Onto the curb," and that he did not know whether he had passed the curb. In opposition, plaintiff argues that Lefrak's cross motion must be denied because it was made 140 days after the note of issue was filed and Lefrak has not o f f e r e d a n y good cause. Plaintiff also argues that Lefrak had notice of the recurrent, greasy/oily condition that caused his fall. In addition, plaintiff maintains that Lefrak's employees may bave created the condition, since its employees cleaned the sidewalk with a power wash broom. Temco also opposes Lefrak's cross motion, inter alia, on the g r o u n d s that it is untimely and Lefrak has not shown good cause. Initially, the court must consider whether to entertain Lefrak's cross motion f o r summary Judgment, It is well settled that a court may consider an untimely cross motion f o r summary judgment as long as the court is deciding a timely motion for summary judgment on " n e a r l y identical" grounds (LaDin v Atlantic -16- [* 17] Realtv Apts. Co., ZLC, 4 8 AD3d 337 [lst Dept 2 0 0 8 1 ; Triborouah Bridqe & Filannino v Tunnel Auth., 34 AD3d 280, 2 8 1 [lst Dept 20061; Altschuler v Gramatan M u t . , Inc., 27 AD3d 304, 304-305 [lst Dept 2 0 0 6 1 ) . Courts have explained that an untimely cross motion for summary judgment may be considered, even in the absence of "good cause," because the court may search the record pursuant to CPLR 3212 (b), and grant summary judgment to any party even if a cross motion has not been made AD3d at 2 8 1 ) . (see Filannino, 34 Here, although Lefrak's cross motion is indeed untimely, the cross motion addresses the same issues as the timely motions for summary judgment dismissing plaintiff's claims, i.e., lack of d u t y , creation, notice of the allegedly hazardous conditions, as well as the cross claims for indemnification asserted by Lefrak of which Temco seeks summary judgment. Accordingly, the court may consider the issues raised in Lefrak's cross motion. As indicated previously, Lefrak, as an owner, has a nondelegable duty to maintain the sidewalk abutting its premises in a reasonably safe condition (Administrative Code 5 7-210; also Spector v Cushman & Wakefield, Inc., 87 AD3d 422, 4 2 3 [lst Dept 20111; Cook v Consolidated Edison Co. of NY, Inc., 51 AD3d 447, 448 [lst Dept 2 0 0 8 ] ) , "A defendant who moves for summary judgment in a slipand-fall action h a s the initial burden of making a prima facie demonstration that it neither created t h e hazardous condition, nor had actual or constructive notice of its -17- [* 18] existence. Once a defendant establishes prima facie entitlement to s u c h relief as a matter of law, the burden shifts to plaintiff to raise a triable issue of fact as to the creation of the defect os notice thereof" (Rodrisuez v 705-7 E. 17gthSt. Hous. Dev. Fund C o m . , 79 AD3d 518, 519 [lst Dept 2 0 1 0 1 [citation omitted]; see also Mannina v Americold Losistics, LZC, 33 AD3d 427 [lst Dept 2 0 0 6 1 ; Giuffrida V Metro N. Commuter R.R. Co., 279 AD2d 403, 404 [lst Dept 20011). "TO constitute 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 Museum of Natural History, 67 NY2d 836, 837 [1986]). "The notice must call attention to the specific defect or hazardous condition and i t s specific location, sufficient for corrective action to be taken" (Mitchell v New York Univ., 12 AD3d 200, 201 [lst Dept 2 0 0 4 1 ) . Additionally, a general awareness that a dangerous condition may be present is legally insufficient to constitute constructive notice of the particular condition (Solazzo v New York C i t v Tr. Auth., 6 NY3d 734, 735 E20051; Piacquadio v Recine Realtv Corp., 84 NY2d 967, 9 6 9 [1994]). As a preliminary matter, the court rejects L e f r a k ' s contention that plaintiff slipped and fell in an area over which it had no duty of care. Administrative Code ยง 19-101 ( d ) d e f i n e s a "sidewalk" as a "that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent -18- [* 19] property lines, but not including the curb, intended for the use of pedestrians." Although Lefrak contends that plaintiff fell on the curb, there is contrary evidence in the form of plaintiff's testimony that ' stepped over the curb onto the sidewalk, my leg ' 1 gave way and I fell". However, there is no evidence that Lefrak created the condition. Plaintiff has only offered speculation that Lefrak may have created the condition by cleaning the sidewalk. There is also no evidence that Lefrak had actual notice of the greasy condition. Kevin P e r d r a e u x , Lefrak's building manager, testified that the sidewalks were not slippery when there was no garbage on t h e m , a n d that Lefrak did n o t receive any complaints about the sidewalks. Thus, the issue is whether Lefrak can be charged with constructive notice of the condition. "A defendant may be charged with constructive notice of a hazardous condition if it is proven that there was a recurring condition of which the defendant has actual notice" (Roman v MetPaca I1 Assoc., L . P . , 85 AD3d 509, 510 [lst Dept 20111). In Batista v KFC Natl. M q t . Co. (21 AD3d 917 [2d Dept 2 0 0 5 ] ) , the plaintiff slipped and f e l l on wood chips on a sidewalk adjacent to a restaurant. T h e Court held that there w re issues of fact as to whether the owner had actual notice of a recurring condition, given that the manager of the restaurant which leased the property testified that her daily inspection of the premises -19- [* 20] frequently revealed the presence of wood chips on the sidewalk (id. 917-918). "Under these circumstances, a trier of fact at could reasonably infer that the defendant had actual notice of such a recurring condition" (id. 918 [internal quotation marks at and citation omitted]). I n order t o establish a recurring condition, plaintiff refers to his testimony that "there was some substance on the sidewalk", and to his co-worker's testimony that "[tlhere was a n area at the curb near a tree and a garbage can where the garbage - somebody's garbage is piled up there on a daily basis and there was always a residue left on the curb and the street in that area. Still remains t o d a y " and that covered with grease". " [plaintiff's] clothing was Additionally, plaintiff relies on another co-worker's testimony that "1 don't know it's grease, but I know it' s a black mark there. . It's black, s o I would assume it's grease or oil or something", and Temco's supervisor's testimony that there was an area of the sidewalk that was discolored where the garbage was put out, that he did not know the cause of the discoloration, and that it smelled like garbage However, plaintiff has not pointed to any evidence that L e f r a k had actual notice of grease or garbage on the sidewalk prior to the accident, and t h u s has failed to show that Lefrak had Constructive notice of a recurring condition ( s e e E a r l V TJ Hilton Hotels Corn., 73 AD3d 559, 562 [lst Dept 20101 ["to t h e extent -20- [* 21] that the record is bereft of any evidence that defendants had actual notice of any straps on the sidewalk prior to the accident, plaintiffs have failed to p r o v e constructive notice of a recurring condition"]; see also Seuretti v Shorenstein Co, E, 256 AD2d 234 ( l s tDept 1998); cf. Uhlich v Canada Dry Bottlinq CO. of N.Y., 305 A D 2 d 107 [ l s t Dept 2 0 0 3 1 [issue of fact as to whether tenant had notice of a recurring condition where plaintiff observed garbage, debris, potholes, broken a s p h a l t and obstructive vehicles in parking lot a n d complained to tenant about garbage]). Accordingly, Lefrak is entitled to summary judgment dismissing the complaint as against it. Temco moves for summary judgment dismissing Lefrak's contractual indemnification and failure to p r o c u r e insurance claims, arguing that its written contract with Lefrak expired by its terms. In addition, Temco contends that the conduct of the parties does not indicate that they intended to incorporate a n y of its terms into any subsequent agreement. In opposition, and in cross-moving for a conditional order of indemnification against Temco, Lefrak argues that the parties' conduct evidences their intent to embrace the Same provisions as the written contact.' According to Lefrak, Ternco continued to 'Article 13.2 of the contract between L e f r a k and Temco provides as follows: -21- [* 22] perform the same duties as outlined in its contract up to and including the time of plaintiff's accident. Lefrak submits an affidavit from Kevin Perdreaux, Lefrak's property manager, who states that, at the time of the accident, Temco provided supervisory staff; reported damage and security breaches; performed nightly services Monday through Friday; performed general and detailed cleaning services; supplied extermination services; removed snow from the sidewalk; provided an elevator starter s i x days per w e e k ; and provided a day porter five days per week. Lefrak argues that, although certain duties were added to Temco's responsibilities, its duties remained substantially unchanged, i . e . , it was required to clean and maintain the building. Furthermore, Lefrak maintains that Temco has not disputed that it continued to owe Lefrak indemnification and insurance following the expiration of the contract. To support [Temco] hereby agrees to indemnify and save harmless [Lefrak] from and against a11 liability claims and demands on account of injury to persons including death resultingtherefrom, losses, damages, expenses (including attorney's fee), claims demands, payments, recoveries, judgements and damage to property a r i s i n g out of O F caused in any manner by t h e performance o r the f a i l u r e to p e r f o r m any work under this c o n t r a c t by [ T e m c o ] , [Temco'SI employees and agents of [Temco] and [Temco's] property, except from and against such claims and demands which may arise out of the negligence of [Lefrak] or any of its subsidiaries. [Temco] shall at his or its own expense, defend any and all actions at law brought against [Lefrak] based thereon and shall pay all attorney fees and all other expenses, and promptly discharge any judgements arising therefrom" \\ -22- [* 23] this assertion, L e f r a k provides a certificate of insurance, which Temco provided, naming Lefrak as an additional insured in accordance with the terms of the expired contract. Finally, Lefrak argues that the indemnification provision does not require a showing of Temco's negligence, and that plaintiff's accident arises out of Temco's failure to police and clean the sidewalk. In response to Lefrak's cross motion, Temco relies on the affidavit from Peter C h a c e , its day manager, who states that there were significant changes in the parties' relationship that differed from the terms of the written contract. Specifically, Chace avers that the following services were eliminated: window washing, maintenance of marble items, and maintenance of metal trims outside the building, and the lobby cleaning duties outlined in Appendix A "Periodic Maintenance," while the "Nightly Maintenance" duties in Appendix A were reduced to sweeping and mopping only. In addition, Chace states that several services were added after the expiration of the w r i t t e n contract, including building security in 2001 and additional security services in 2005, pressure washing, maintenance of the lower parts of pillars in the plaza, regular work requests to perform extra work f o r tenants or perform other miscellaneous work, and carpet care. Additionally, Temco points out that, p u r s u a n t to the expired written contract, L e f r a k was r e q u i r e d to provide -23- [* 24] compensation increases; however, Temco's compensation actually decreased in 1993, 1994, 1995, 1996, 2003, a n d 2008. 'Where, after the expiration of a contract fixing the reciprocal rights and obligations of the parties, they continue to do business together, t h e conduct of the parties may at times permit, or even constrain, a finding that the parties impliedly agree that their rights and obligations in connection with such business should continue to be measured as provided in the old contract' (Twitchell v Town of Pittsford, 106 AD2d 903, 904-905 [4th Dept 19841, a f f d 66 N Y 2 d 824 [1985], quoting New Y o r k Tel. Co. v Jamestown Tel. Corp., 282 NY 365, 371 [1940]). "[WJhen an agreement expires by its terms, if, without more, the parties continue to perform as theretofore, an implication arises that they have mutually assented to a new contract containing the same provisions as the o l d " York, (North Am. Hvperbaric Ctr. v Citv of New 198 AD2d 148, 149 [lst Dept 19931, I v d e n i e d 83 NY2d 758 [I9941 [internal quotation marks and citation omitted]; see also Curreri v Heritacre ProD. Inv. Trust, Inc., 48 AD3d 505, 506-507 [2d Dept 20081; Martin v Campanaro, 156 F2d 1 2 7 , 129 [2d Cir], cert d e n i e d 329 US 7 5 9 [1946] [in determining whether there is an implied contract, courts must follow an objective test, i.e., make such a new binding agreement - whether they acted as if they so intended"]). However, the parties must continue to operate as if governed by the expired contract. In Curreri, s u p r a , the plaintiff -24- [* 25] tripped on a pothole in a parking lot. The owner had a contract with a contractor to perform custodial work in t h e parking lot, which contained a contractual defense and indemnification clause. At the time of the plaintiff's accident, the contract between the owner and the contractor had e x p i r e d ; however, the contractor continued to provide "essentially t h e same services" to the owner, and the owner continued to pay the same rate. The Court held that "despite the fact the original contract had expired, their conduct evidenced their mutua1 assent to a new contract embracing the same provisions and terms as their prior contract. Accordingly, the contracting obligating [the contractor] to defend and indemnify [the owner] was in effect at the time of the plaintiff's injury" (Curreri, 48 A D 3 d at 506-507). In Watts v Columbia Artists Mat. (188 A D 2 d 799, 801 [3d Dept 1 9 9 2 1 ) , the Court stated, after a nonjury trial, that, " [ w l e are of the view that the parties' conduct after the expiration of the written contract including defendant's continued rendition of services, plaintiff's acceptance of those services and plaintiff's payment of commissions in accordance with the terms of the written contract, clearly establish a contract implied in fact with substantially the same terms and conditions as embodied in the expired written contract between defendant and the Corporation. I ' By contrast, in Twitchell, s u p r a , the parties' conduct w [* 26] district's property and was required to procure liability insurance to cover damages resulting from claims for personal injury. The plaintiff was injured when he fell on ice in the school district parking lot, which was caused by the town's use of a fire hydrant f o r resurfacing the rink on the day before the accident. The plaintiff sued the town, which then brought a third-party action against the school district. Although the written contract between the town and the school district expired, the town continued to maintain the skating rink after the expiration of the agreement. indemnification from the town. \\ The school district sought On appeal, the C o u r t held that the mere conduct of the town herein, in continuing to use the skating rink, is insufficient to create a contract for indemnification" (Twitchell, 106 AD2d at 905) . In Computerized Ned. Imaainq E a u i p , v Diasonics Ultrasound (303 AD2d 962 [4th Dept 2 0 0 3 ] ) , ongoing dealings between a manufacturer and a sales representative following the expiration of a written contract did n o t gi$e rise to an implied-in-fact agreement. Notably, the parties expressly characterized their continuing business relationship as "terminable-at-will" (id. a t 964). Here, the court finds that there are issues of fact as to whether the p a r t i e s mutually assented to a new c o n t r a c t on the same terms as the expired contract (and thus agreed to be bound -26- [* 27] by the contractual indemnification and failure to procure insurance provisions of the expired contract). While Lefrak maintains that Temco s services remained substantially unchanged, Temco submits evidence that several services were added and removed after the expiration of the contract (including pressure washing, security, window cleaning, and periodic and nightly maintenance) and that Lefrak did not continue to pay Temco the rate increases required by the expired contract but in fact reduced Temco s compensation f o r six y e a r s . Whether performance after the expiration of a contract constitutes an implied-in-fact agreement generally presents a question of fact that involves an assessment of the parties conduct, and the extent to which such conduct demonstrates a meeting of the minds to continue on the e x p i r e d contract s terms (Monahan v Lewis, 51 A D 3 d 1308, 1310 [ 3 d Dept 20081). The fact that the parties continue to deal under some s o r t of informal arrangement does not, without more, mean that all of the terms of the expired formal contract continue to apply (Twitchell, 106 AD2d at 904). Therefore, the branch of Temco s motion seeking dismissal of Lefrak s contractual indemnification and failure to procure insurance claims, and the branch of Lefrak s cross motion seeking a conditional o r d e r of indemnification against Temco, are denied. Temco moves for summary judgment dismissing the common-law indemnification and contribution claims asserted against it, -27- [* 28] because plaintiff alleges that its co-defendants were actively negligent rather than vicariously liable. Further, Temco argues that there is no e v i d e n c e that it performed its w o r k negligently or that its failure to act was a proximate cause of the accident. Lefrak opposes this portion of Temco's motion and crossmoves for conditional common-law indemnification over and against Temco. Lefrak a r g u e s that, to the extent that it bears any liability, it would be based upon principles of vicarious liability, and not based upon any active negligence, and that Temco would bear at l e a s t some percentage of fault. "To establish a claim for common-law indemnification, 'the one seeking indemnity must prove not only that it was n o t guilty of any negligence beyond the statutory liability b u t must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident'" (Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681, 684-685 [2d Dept 20051, quoting Correia v Professional Data Mat., 259 AD2d 60, 65 [lst Dept 19991; see a l s o Martins v Little 40 Worth Assoc., Inc., 72 AD3d 483, 484 [lst Dept 20101). "Contribution is available where two or more tortfeasors combine to cause an injury and is determined in accordance with the relative culpability" of the parties (Godov v Abamaster of Miami, 302 AD2d 57, 61 [2d Dept], lv d i s m i s s e d 100 N Y 2 d 614 [2003] [internal quotation m a r k s and citation omitted]; see also Mas v Two Bridues ASSOC., 75 NY2d -28- [* 29] 680, 689-690 [1990]). As discussed above, there are questions of fact as to whether Temco created the condition which caused plaintiff's accident. Thus, summary judgment on the common-law indemnification and contribution claims against Temco is inappropriate (see Perri, 14 AD3d at 685 [conditional summary judgment for common-law indemnification is premature absent proof that t h e proposed indemnitor was either negligent or exclusively supervised or controlled the plaintiff's work]). Lefrak seeks summary judgment dismissing the cross claims for common-law indemnification and contribution against it. Temco argues, in opposition to this portion of Lefrak's motion, that there is a question of fact as to whether Lefrak breached its nondelegable duty to plaintiff to maintain the premises in a reasonably safe condition. The court has determined that Lefrak did not create or have notice of the grease on the sidewalk. Therefore, the cross claims for common-law indemnification and contribution asserted against Lefrak are dismissed. Bay Leaf and Nobu have also moved for summary judgment dismissing the cross claims for common-law indemnification and contribution against them. Lefrak and Temco oppose these portions of the motions, arguing that there are questions of fact as to whether Bay Leaf and Nobu created or had notice of t h e g r e a s y condition. As indicated previously, Bay Leaf and Nobu have established that they were not negligent. -29- Accordingly, the [* 30] cross claims f o r common-law indemnification and contribution against Bay Leaf and Nobu are dismissed. Lefrak opposes t h e dismissal of its contractual indemnification and failure to procure insurance claims against Bay Leaf and Nobu, arguing that there are questions of fact as to their negligence.2 As noted above, Bay Leaf and Nobu have shown that they were not negligent. Moreover, Lefrak has not disputed that Bay Leaf and Nobu purchased all appropriate insurance. Accordingly, these claims are dismissed. Accordingly, it i s h e r e b y ORDERED that t h e motion (sequence number 004) of defendant Bay Leaf Enterprises, Ltd. for summary judgment dismissing the complaint and a l l cross claims against it is granted and the complaint and a11 cross claims are severed and dismissed as against said defendant with costs and disbursements as taxed by the C l e r k of the Court, and the Clerk is directed to enter judgment accordingly; and it is further ORDERED that the motion (sequence number 005) of defendant Nobu 57 LLC for summary judgment dismissing all claims against it is granted and the complaint and all CKOSS claims are severed and 2Article 46 of the lease between Lefrak and Bay Leaf requires Bay Leaf to indemnify and save harmless Lefrak from all claims arising from, inter a l i a , any act, omission or negligence of Bay Leaf. Article 9 of the lease between L e f r a k and Nobu requires Nobu to indemnify a n d hold the owner and managing agent harmless from a n y and all claims resulting from (i) any breach of the lease or (ii) Nobu s negligence. -30- [* 31] dismissed a s against said defendant with c o s t s and disbursements a s taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly; and it is further ORDERED that the motion (sequence number 006) of defendant Temco Service Industries, Inc, for summary judgment dismissing the complaint and all cross claims a g a i n s t it is denied; and it is further ORDERED that the cross motion of defendant Lefrak SBN Lim ted Partnership for summary judgment dismissing the complaint and all cross claims against it and for a conditional o r d e r of indemnification is granted to the extent of dismissing the complaint and the cross claims for common-law indemnification and contribution as against it, and is otherwise denied; and it is York 10013. This is the decision and order of the court. Dated: ENTER: Januarv 23, 2013 -31-
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