Harms v Snug Harbor Sq. Venture, US
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Harms v Snug Harbor Sq. Venture, US 2013 NY Slip Op 30636(U) March 27, 2013 Sup Ct, Suffolk County Docket Number: 09-7390 Judge: Arthur G. Pitts 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] SHORT FORM ORDER INDEX NO. CAL. No. 09-7390 12-00956OT SUPREME COURT - STATE OF NEW YORK I.A.S. PART 43 - SUFFOLK COUNTY PRESENT: Hon. ARTHUR G. PITTS Justice of the Supreme Court Plaintiffs, - against SNUG HARBOR SQUARE VENTURE, US MAINTENANCE, INC. and J. TREZZA ASSOCIATES, INC., MOTION DATE - I 0-9- 12 (#003) MOTION DATE 10- 10-12 (#004) 1-10-13 ADJ. DATE Mot. Seq. # 003 - MG # 004 - MG; CASEDISP ASHER & ASSOCIATES, P.C. Attorney for Plaintiffs 11 1 John Street, Suite 1200 New York, New York 10038 BELLO & LARKIN Attorney for Defendant US Maintenance 150 Motor Parkway, Suite 405 Hauppauge, New York 1 1788 JOSEPH C. TONETTI, P.C. Attorney for Defendant J. Trezza Associates 548 West Jericho Turnpike Smithtown, New York 1 1787 (Jpon the following papers numbered 1 to 33 read on these motions for summary judgment ;Notice of Motion/ Order to Show Cause rind supporting papers 1 - 14, 15 - 27 ;Notice of Cross Motion and supporting papers -; Answering Affidavits and supporting papers 28 - 29 ; Replying Affidavits and supporting papers 32 - 33 ; Other co-defendant s affirmation in partial ) it is, opuosition 30 - 3 1 ; (~ ORDERED that these motions are hereby consolidated for purposes of this determination; and it is further ORDERED that this motion by defendant US Maintenance, Inc. for an order pursuant to CPLF! 3212 granting summary judgment dismissing plaintiffs complaint and all cross claims against it or, in the alternative, granting summary judgment in its favor against the defendant J. Trezza Associates, Nnc. is granted to the extent that the complaint and all cross claims against it are dismissed, and is othcnvise denied as academic, and it is further ORDERED that this motion by the defendant J. Trezza Associates, Inc. for an o r d e r pursuant to CPLR 32 12 granting summary judgment dismissing the complaint and all cross claims against it is granted. [* 2] Harms v Snug Harbor Square Venture lndex No. 09-07390 Page No. 2 This is an action to recover damages for injuries allegedly sustained by the plaintiff Nancy ]Harms (Harms) as a result of a slip and fall on ice on the sidewalMapron adjacent to the entrance of the Stop & Shop supermarket located at 351 Merrick Road, Amityville, New York (the premises). The incident occurred on December 20,2008, at approximately 7:40 a.m., as Harms was entering the supermarket, where she was employed as a cashier. It i s undisputed that the defendant Snug Harbor Square Venture (Owner) is the owner ofthe shopping center in which the supermarket is located, and that the nonparty Stop & Shop leased the premise? fTom Owner. By order dated March 27,20 12, the undersigned granted Owner s motion for summary judgment and dismissed the complaint against it. It is also undisputed that, pursuant to a contract with Stop & Shop, the defendant 1JS Maintenance, Inc. (USM) was hired to perform snow removal at the premises, arid that USM entered into a subcontract with the defendant J. Trezza Associates, Inc. (Trezza) to actually perform those services. USM now moves for summary judgment on the ground that it owes no duty to Harms as there is no legal relationship nor contractual privity between them. In support of its motion, USM submits, among other things, the pleadings, the depositions of the parties, its contract with Stop & Shop, its subcontract with Trezza, and Trezza s invoice for its snow removal work. The Court notes that Harm s deposition and that of Trezza s sole shareholder are certified but unsigned, and that USM has failed to submit proof that the transcripts were forwarded to the witnesses for their review (see CPLR 3 1 16 [a]:). However, the Court may consider the unsigned deposition transcripts submitted in support of the motion as the parties have not raised any challenges to their accuracy (Rodriguez vRyder Truck, Inc., 91 AD3d 935,937 NYS2d 602 [2d Dept 20121; Z d o t vZiebn, 81 AD3d 935,917 NYS2d 285 [2d Dept 201 I]; see also Bennef v Berger, 283 AD2d 374,726 NYS2d 22 [ 1st Dept 20011; Zabari v City of New York, 242 AD2d 15,672 NYS2d 332 [ 1st Dept 19983). At her deposition, Harms testified that she was scheduled to work on Saturday, December 201,2008 as a cashier for the Stop & Shop located on Merrick Road, Amityville, New York. She was scheduled to begin work at 8:OO a.m. that day. She pulled into the parking lot and exited her vehicle. It had snowed the night before. but she did not know if the parking lot had been plowed. However, she indicated that [wlhen I got out of my car, the snow was a fluffy type of snow. Harms further testified that she approached the west entrance to the Supermarket, stepped on the apron, lost her footing and fell to the ground. In describing the condition of the area that caused her to fall, she stated that [i]t was icy. It was white, but when I put my foot on it, I slid so it was icy hard snow. She indicated that she did not know whether the manager of the Stop & Shop was responsible to have the area cleared of snow, or who s responsible for us to walk into a safe environment. Harms further testified that she did not know anything about how Stop & Shop cleared snow from its parking lot. Matthew T. Robinson (Robinson) was deposed on December 2, 201 1. He tcstified that he is employed as the category manager in strategic sourcing for USM, that USM is a facilities management company, and that his duties include hiring subcontractors to provide services to USM s customers. He stated that the contract between Stop & Shop and USM was effective from October 19, 2007 to May 3 1, 2009, that the contract covers the premises, and that the contract provided for snow removal services only. [* 3] Harms v Snug I [arbor Square Venture Index No. 09-07390 Page No. 3 He indicated that snow removal services included snow plowing, snow shoveling, and ice control applications. Robinson further testified that USM had entered into a subcontract with Trezza to perform snow removal at the premises. At his deposition , James Trezza testified that he is Trezza s sole shareholder, and that Trezza entered into the subject subcontract and an amendment to the subcontract with USM. Depending on the weather conditions, his company would get a telephone call from USM or would otherwise go 1.0 the premises to do its work. Stop & Shop would not call for snow removal. However, Trezza was required to have the manager at the supermarket sign a voucher either approving or declining the application of a salt sand mixture when conditions were icy. James Trezza further testified that the invoice submitted to USM for the subject snowstorm indicates that his company plowed the premises on December 19,2008, and sand salted on Ileccmber 20,2008. He stated that the invoice indicated to him that this was a late night storm, and that Trezza plowed at night and sanded in the morning. He avowed that if it was late and we plowed it, we wouldn t sand it because it (sic)just going to refreeze. We would resand it when it is ice. He acknowlcdged that the contract with USM requires Trezza to monitor ice conditions, that Stop & Shop employees sometimes shovel the sidewalk area at the premises, and that Trezza was obligated to send out its crews once one inch of snow had accumulated on the ground. James Trezza further testified that the subcontract required Trezza to apply ice control unless the Stop & Shop manager declined it, that USM made most of thedecisions whether to apply salt sand, and that sometimes the supermarket managers would tell the crews not to salt sand the premises. To prove a prima facie case of negligence, a plaintiff must demonstrate the existence of a duty, a breach of that duty, and that the breach of such duty was a proximate cause of his or her injuries (see ,Pu/ka v Edelnznn, 40 NY2d 781,390 NYS2d 393 [1976]; Fox v MarslzaN, 88 AD3d 131,928 NYS2d 317 [2d Dept 201 11; Erigelliart v County ofOrange, 16 AD3d 369,790 NYS2d 704 [2d Dept 20051; Elliot v Long Island Home, LTD, 12 AD3d 481, 784 NYS2d 615 [2d Dept 20043). Once a defendant s duty is established, it is the function of a jury to determine whether and to what extent a particular duty was breached. Ilowever, it is for the courts to decide in the first instance whether any duty exists and, if Zjo, the scope of such duty (Church v Cnllanan Indus., 99 NY2d 104,752NYS2d 254 [2002]; Darby v Compagnie Nntl. Air Frmce, 96 NY2d 343,728 NYS2d 73 1 [2001]; Waters v New York City Hous. Autli., 69 NY2d 225,513 NYS2d 356 [1987]). Ordinarily, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third-party (see Espinal v Melville Snow Contrs., 98 NY2d 136, 746 NYS2d 120 [2002]; Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220,226, 557 NYS2d 286 [l 9901). IHowever, the Court of Appeals has identified three situations in which a party who enters into a contract may be held to have assumed a duty of care to non-contracting third persons. That is, tort liability for injuries to a third person I Trezza not only does not object to the submission of this deposition jn USM s motion, it submits the same unsigned copy in its motion. The Court will consider the unsigned transcript as it has been adopted by the party deponent (Rodriguez v Ryder Truck, Inc., 91 AD3d 935, 937 NYS2d 602 [2d Dept 20121; Asliifv Won Ok Lee, 57 AD3d 700, 868 NYS2d 906 [2d Dept 20081; Wojtns v Frih Ave. Coach Corp., 23 AD2d 685,257 NYS2d 404 [2d Dept 19651). [* 4] FTarnis v Snug Harbor Square Venture Index No. 09-07390 Pagc No. 4 may be imposcd on a contractor under the following circumstances: (1) where the contracting pairty, in failing to exercise reasonable care in the performance of its duties, launched a force or instrument of harm (Espinal v Melville Snow Contrs., supra, quoting H.R. Moch Co. v Rensselaer Water Co., 247 NJ 160, 168, 1 59 NE 896 11928]), thereby creating an unreasonable risk of harm to others or increasing the existing risk (Church v Callarian Indus., supra); (2) where a plaintiff suffered injury as a result of his or her reasonable reliance on the continued performance of the contracting party s obligations (see Eaves Brooks Costume Co. v Y.B.H.Realty Corp.,supra);and (3) where the contracting party undertook a comprehensive and exclusive property maintenance obligation intended to displace the landowner s duty to safely maintain the property (,see Polka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 61 1 NYS2d 8 17 [1994]). Jt is uell settled that [a] limited contractual undertaking to provide snow removal services generally does not render the contractor liable in tort for the personal injuries of third parties (Lubell v Stonegate at ArdsIeyHomeOwnersAssn., Inc., 79AD3d 1102,1103,915NYS2d 103 [2dDept2010], WlieatonvEast End Commons Assoc., LLC, 50 AD3d 675,677,854 NYS2d 528 [2d Dept 20081). The terms of the USM s contract limited its snow removal obligations, including ice control measures to accumulations of one inch or more. With accumulations less than one inch, the contract obligated USM to perform salt/sand or surface clearing only upon request of the Store Manager or hidher authorized designee. Where, as here, the express terms of the contract provide that a contractor is obligated to plow only when snow accumulation exceeds a certain level, the Court of Appeals has held that such contractual undertak.ing is not the type of comprehensive and exclusive property maintenance obligation that would entirely displace...a property [owner s] duty to maintain the premises safely (citations omitted) (Henriquez v Inserra Supermarkets, Inc., 89 AD3d 899,933 NYS2d 304 [2d Dept 201 11). Here. lJSM has established its prima facie entitlement to judgment as a matter of law by coming forward with proof that the plaintiff was not a party to the contract between Stop & Shop and USM, and therefore she was owed no duty of care (see Henriquez v Inserra Supermarkets, Inc., id.;Lubell v Stonegate at Ardsley Home Owners Assn., Inc. ,supra; Foster v Herbert Slepoj Corp., 76 AD3d 2 10,905 NYS2d 226 [ 2d Dept 20 lo]; Wheaton v East End Commons Assoc., LLC, supra), that its conduct did not creatc or exacerbate a dangerous condition on the premises, and that plaintiff did not rely upon its performance of its snow removal obligations (see Schultz v Bridgeport & Port Jefferson Steamboat Co., 68 AD3d 970, 891 NYS2d 146 [2d Dept 20091; Wheaton v East End Commons Assoc., supra; Castro v Maple Run Condominium Assn., 41 AD3d 412, 837 NYS2d 729 [2d Dept 20071). In addition, the plaintiffs testimony establishes that she did not reasonably or detrimentally rely upon USM s performance of its contract. In opposition to the motion, plaintiff failed to raise a triable issue of fact as to whether any of the exceptions apply so as to hold USM liable in tort to the plaintiffs (see Lubell v Stonegate at Ardsley Home Inc., Owners ASSII., supra; Espinal v Melville Snow Contrs., supra). The plaintiff failed to submit any admissible evidence further addressing the detrimental reliance exception and has not presented any evidence that USM by removing snow in accordance with its contract, launched a force or instrument of harm which created or exacerbated the allegedly hazardous condition ( Wheaton v East End Commons ASSOC,, LLC. supra; see Foster v Herbert Slepoy Corp., supra). Accordingly, USM s motion for summary judgment dismissing the complaint and all cross claims against it is granted. [* 5] Harms v Snug I-Iarbor Square Venture Index No. 09-07390 Page No. 5 Turning to Trezza s motion, the Court notes that, with some additions, the same pleadings, documents and depositions have been submitted in support of the motion. In addition, the plaintiffs submitted onc affirmation in opposition to both motions herein. A review of Trezza s submission reveals that the issues raised in this motion are essentially identical to those raised in USM s motion. A review of the subcontract and amendment reveals that Trezza was obligated to begin plowing when one (1) inch of snow has accumulated at the location, and continue plowing every one (1) inch thereafter ... In addition, under paragraph 5 (b) of the amendment, Trezza was required to monitor your locations to determine ,when ice control operations need to commence. [Trezza is] required to check with onsite management before any snow clearing operations begin (emphasis in original). IHere, for the reasons stated above, Trezza has established its prima facie entitlement to summary judgment herein, and the plaintiffs have failed to raise a triable issue of fact as to whether any exceptions apply to hold Trezza liable in tort to the plaintiffs. Accordingly, Trezza s motion for summary judg,ment dismissing the complaint and all cross claims against it is granted. Dated: March 27,201 3 X FINAL DlSPOSITION NON-FINAL DISPOSITION
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