Offner v Briad Lodging Group Hauppauge, LLC

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Offner v Briad Lodging Group Hauppauge, LLC 2013 NY Slip Op 30639(U) March 19, 2013 Sup Ct, Suffolk County Docket Number: 08-17229 Judge: Daniel Martin 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] INDEX NO. 08- 17229 CAL NO. 12-008280T SUPREME COURT - STATE OF NEW YORK I.A.S. PART 9 - SUFFOLK COUNTY P R E S E .V T: I-ion - DANIEI, MARTIN .lustice ofthe Supreme Coiirt MOTION DATE 9-20- 12 1#004) MOTION DATE 9-2 1 - 12 (#005 6L #006) ADJ. DATE 11-27-12 # Mot. Se~l. 004 - MG # 005 - MG # 006 - MG BISOGNO & MEYERSON, ESQ. Attorney for Plaintiff 701 8 Ft. Hamiltoil Parkway Brooklyn, New York 11228 Plaintiff, - against - RRlAD LODGING GROUP HAUPPAUGE, LLC, RESIDENCE INN BY MARRIOTT, LLC, THE BRICTMAN GROUP, LTD., and R.B.R. SNOW CONTRACTORS INC., d/b/a RBWMELVILLE SNOW, and J.R. ORGANICS, TNC., Third-party Plaintiff, - against - ICDK SNOW ('ON'I-RACTORS INC., d/b/a JEFFREY SAMEL & PARTNERS Attorney for Defendants Briad Lodging Groiip and Residence Inn 150 Broadway, 20th Floor New York, New York 10038 KRAL, CLERKIN, REDMOND, RYAN, PERRY & VAN ETTEN, LLP At toniey for De fendan t/Th i rd -P arty P 1ai ii ti ff The Brictman G ~ O L I ~ 538 Broadhollow Road, Suite 200 Melville, New York 1 1747 MAZZARA & SMALL, P.C. Attorney for Second Third-Party Defendant/ Third-party Defendant J.R. Organics 800 Veterans Memorial Highway, SLiite LL5 Hauppauge, New York 1 1788 R B R / M E LV I 1< L E SNOW, O'CONNOR, O'CONNOR, HINTZ, & Third-Party Defendant. DEVENEY, LLP -._-__________--__--____________________--------------------X Attorney for Defendant/Thi rd-PartyDefendant and RBI< SNOLC' CONTKACTORS INC., d/b/a Second Third-party Plaintiff R.B.R. Snow I< ¬3 I<#''L?E I - 1 'I - I_ E s NOW. .I Contractors One Huntington Quadrangle, Suite 3C01 Sccond Th i rd- Part y P 1ai n t i ff, Melville, New Yorli 1 1747 - against - Second Tlii rd-Party Defendant. x> [* 2] x __________-_____-___----------------------------------------- HRIAD LODGING GROUP HAWPALJGE,LLC, IIESIDL:NCE INK BY MAICRIOTT, LLC, Th i rd Th i rd-P arty P 1ai nt i ffs, - against -- RBK SNO\\~ CONTRACTORS INC., d/b/a R B R hlEL\;lLLE SNOW, and J.R. ORGANICS, IVi( . I Ipon tlic IVllouxig papei-s numbered 1 t o m read on these motions for simiiiarv iudtrment: Notice of Motion.! 01-der Cause ~ n stipporting papers 1 - 24, 25-48. 49-. 98-99 ; Replying Affidavits and supporting papers 100-101, 102-103. d 104-105. 106-107 ; other^; ( [ ) it is, IC) S h u n ORDERED that motioii (#004) the defendantlthird third-party defendant, J.K. Organics, lnc. (JR) by lor siiiiimai-yj Lidgmeiit dismissing the complaint aiid all third-party claiins asserted against it is granted; and 11 IS fllrtller ORDERED that motion (#005) by the defeiidaiit/second third-party plaintiff, R.B.R. Snow Contractors, Inc.( IIBR), for siiniiiiary judgment disriiissiiig plaintiff s complaint and all third-party claims asscrtcd against i t is granted; and it is fui-tlier ORDERED that iiiotioii (#006)by the defeiidaiit/third-party plaintiff, the Brickriiaii Group, I.TD.,incorrectly sued herein as the Brictman Group, (Brickinan) for summary judgment dismissing the complaint am1 cdlthird-party clainis asserted against it is granted. This i s iiii iction to recover damages for iiijiiries allegedly sustained by the plaintiff on February 27, 7007 ~5 hen she allegedly slipped aiid fell on snow and/or ice in the parking lot of the Residence Inn iii I f,i~ippiuge, New Yoi-I<. The action was initially brought against Briad Lodging Group, Haiippaugc, L,LC B i - ~ ~ i d ) , pi-opei-tyowner, and Residence Inn By Marriot, LLC (Resideiicc Inn), the operator of the mi, the \\ ith the othcr dcli.ndants being added as the action proceeded. ( for Ikfcndcint third third-party defendant JR now moves (#004) summary jiidgiiient disiiiissiiig the compl,iiiit and dl cross claims asserted against it. In suppoi-t of thc motion JR submits, [/itercilrci, i t s .ittoi iiey \ ,il lirmatioii, the pleadings, copies of three snow removal contracts, copics of invoices, thc depositions ol tlie plaintiff, the depositions of Dominic Tinelli, Jr. (Briad/ Residciicc Inn), Ray Nobilc ( H i icl\mm), I ati icI\ Feehen (RBR), and John Lynch (JR) I) c f i 11d i. I1t scc o i i d th i 1 tl- p art y p 1ai i i t 1 ff RB R now inov es (#0 5 ) for siini i i i ary J LI d gm en t d isi111s5 1iig . 0 m c l all cross claims ,isserted against it In support of the motion RRR subiillts, rufcr u / / u ,its . i l t o i iicy s ifIii t i i a t i o i i , the plcadiii~s, copies of three snow reinoval coiitracts, copies of- in\/oiccs, the depositions o r the plaintiff, the depositions of Dominic Tinelli, Jr. (Briad/ Residence Inn), Ray Nobile ( I ~ I - I ~ I ~PIdIi ~ ~ )Feelien (RBR), and John Lynch (JR). icL , tlic coiiipI,iint [* 3] De t~nd~iiit tliird-party plaintiff Brickman i i o ~ moves ( W O G ) for sLimmai-yjLldgilit litdism~ssiilg the coiiip1,iiiit md 11 cross clciiiiis asserted against i t In support of the motion RBR submits, iiitcr illfir, Its ,1 .ittoriiey s lftii-iiiatioii, the pleadings, copies of three siiotv renio\ a1 contracts, copies of invoices, the clcpositions ol dit plaintiff. the depositions of Dominic Tiiielli. Jr. (Briad/ Residence Inn), Ray Nobile ( 131 c l i ~ i i m PLitiicli Feeheii (IIBR), aiid Joliii Lynch (JR) i )~ In opposition to these motions, the plaintiff submits lier attorney s ciffir~iiat~on, b i l l of putrculars the ,ind supplciiie~it~il ofp,irticulars, the depositions of the plaintiff, and the depositions of Dommic Tiiielli, bill 11 (Hii,id Residence Inn) aiid John Lynch (JR). 111 opposition to these motions tlie defendants, Briad and Residence Inn submit, iriter d i i i , their .ittoiney s afliriiiation, the pleadings, copies of three snow removal contracts, copies of invoices, the cicpositions of the plaintiff, the depositions of Dominic Tiiielli, Jr. (Briad/ Residence Inn), Ray Nobile (Briclman), Patrick Feeheii (RBR), and John Lynch (JR). Plaintil fwas deposed twice, on March 21, 201 1, and on October 25, 201 1, much oftlie latter ~nvolves medical questions, while a portion deals with the accident itself. Plaintiff testified that she lives in Texas and flc\~, New York on a business trip on February 26, 2007 for her work as a medical sales into e I-epreseiitati~ for BD Medical, specifically to attend soine meetings at the VA Hospital in Nortliport, New )rorlc. She landed at LaGuardia Airport, rented a vehicle and drove to Hauppauge where she had a reservation at the Residence Inn. She was a frequent business traveler and recalled staying at this hotel the previous year. When she arrived at the hotel, with a co-worker at approximately 8:30-9:00 p.iii., there were quite a few cars 111 tlie parking lot. She did not see any ice anywhere. The parking lot and roadways had been plowed I t appeared that salt had been applied aiid she could see the blacktop surface of the parking lot After checking in, she returned to her vehicle and parked the car in the lot. As she walked through tlie parking lot she did not observe any ice. Her appointment at the VA Hospital the followiiig day was at approximately 7:30-8:00 a.m. Upon departing her hotel the next inonling (February 27, 2007) at .tpproxiniately 7:OO a.iii. for her meeting, the weather was clear and no precipitation was falling. She v ~ d k e do her vehicle and did not observe any ice iii the parking lot. She observed one-quarter to one-half t ol an inch o r icy precipitation on her vehicle s windshield. Thc parking lot had been plowed or shoveled and theic was salt 01- sand. Her meeting at tlie VA Hospital concluded at approximately 12:00-12:30 p m., ,it which tiiiie she d r o w back to Hauppauge, stopping first at a restaurant. There was no precipitation during the ridc. Plaintiff left tlie restaurant approximately forty-five minutes later. Upon arriviiig at tlic fiesicleiice Inn, tlic front lot was full and slie proceeded to drive to the back parking lot Plaintiff stated that she observcd w~ i n the parking lot. However she testified that she did iiot know when i t fell 01-how iiiany hoiirs i t had bccn there. .4t her first deposition, she estimated that there was onc to two inches of siion Zt hei- second deposition plaintiff stated that there was [nilaybe an inch I f that. She liirther tcsti lied th,it \ \ l i c i t she s m appeared to be fresh snow. When asked how slie Icnew It w a s fi-esh snow, she replied B ~ C ~ Li tI had snowed the night before. Plaintiff chose a parking spot close to the back door- ol X the hotel Shc pulled into it and parked the vehicle. Upon opening lier door, she observed snow on thc y o u n c i hut c o n t i n ~ i c d exit thc vehicle. She believes that she started to step with her right foot. Plaiiitif f to teblitied that Iicr feet tlcv, out from iinder lier. She did not see any ice before slie fell. She alleged that she i;in somc ice u here lier feet had been. It was the width of her heel aiid about 12-14 inches long. The ice \vets clcar, perhaps a little cloLidy. She did not observe any ice at all that day aiiywhere else on the premises nor did not I<no\~ how long the ice had been there. She did not fill1 to the ground but fell backwards into the [* 4] Ot fiier 1 Briacl Indc\: N o os- 17220 Page Zo. 4 dri\ci y \\ell oflicr \chicle. After a feu minutes she got up, returned to the hotel and cntered her room. IJpoii ciitei ing the hotel she niade no complaints to the staff about her fall or the ice oi the c o n d ~ t ~ oof the ii piIking lot Shc did not ash tlie staff to put down ice or sand or show them where the accident occurred. She did st itc t l i d shc iiiciy have casually mentioned her accident to a staff member at the front desk Later tli it smic c\ cniiig she returiied to the VA Hospltal. The parking lot had been cleared She never obsen ed the icc condition again. She checked out of the hotel the following day without mentiotiing hcr accident. She iic\ ei xtuallq aiiyoiie plowiiig snow during her stay at the hotel. Dominic rinelli, Jr testified on behalf of tlie defendants Briad and Residence Inn. He is employed by Mmiot A S General Manager aiid is in charge of the Residence Inn at 850 Veterans Highway, Hauppauge, Ncu L oi-lL He has been a Marrrlot employee for 23 years, He had been assigned to the subject premises foiiiiiie months pi-lor to his deposition. He stated that the Residence Inn continues to have a snow removal contract \ i t h defendant Brickman. The Residence Inn s manager on duty would be responsible for I coiiimiinic itiiig with Brickinan. When plowing is performed and vehicles are parked in the lot, Residence Inn does not have their guests move their cars so that the entire lot can be plowed. The plowing company then plo\vs where it can. The plowing company is not expected to plow between parked cars. The Residence Inn staff does not remove snow from between parked cars. He had no knowledge about aiiy complaints made about defendants Brickman, RBE and JR about conditions on the premises in February 2007. The property is staffed 24 hours a day, seven days a week and the staff are instructed to check for potentisl hazards and report them to the manager. He had no knowledge of any reports about ice in Februai-y of 2007. Rciymoiid Nobile was deposed on behalf of the defendanthhird-party plaintiff Briclman. He I S the liegioiial Vanager for Briclman. His territory includes the Residence Inn By Mai-riot in Hauppauge. He identified the siiow contract between Brickman and Marriot for Residence Inn for the 2006-2007 winter season. Brickman entered into a written contract with defendant RBR, subcontracting the snow removal services to RBR. There is no written document spelling out when Brickman must provide snow services. It was the decision of the customer when snow services should be provided. The Residence Inn was to call Brickman \v hen i t wanted snow services. There was no snow fall accumulation trigger for snow removal. Bricliman did not contract to shovel snow between cars. Thc gciicral rnanagcr of the Residence Inn would determine if salt or sand was needed. He had no knowledge of any complaints received from the Residence Inn to Bric1;mm with regard to plowing done at the location from February 25, 2007 to February 27, 2007. IfRricl<iiiLiiicalled RBR to perform snow services, Briclanaii would get a bill from RBR and Brickman \\auld b i l l the Marriot. He identified Brickman s bill to Marriot for work at the subject premises in connection with the February 25, 2007 to February 26, 2007, snow event. The exhibit indicated that the bill \vas paitl by Mal-riot for plowing and salting the roadways and parking lot. The fact that the bill was paid indicates that it accepted the work and it was done without complaint or dispute. P iti ick Fcchan was deposed on behalf of defendant/secoiid third-party plaintiff RBR. He is Director of Sales a n d M,irl\eting f o r the company. His duties include soliciting work, marketing and hiring biihconii-acto1s Hc identified the written contract RBR had with Brickman ¬or siiow maiiageinent at the Resitlciice Inn i n Hauppauge. RBR subsequently subcontracted that work to the defendant JR RBR would not dispatch a subcontractor to perform work unless contacted by Brickman. RBR would dispatch ~ t s subcontractors only after 2.1 inches of snow accumulation. The contract between RBR and Brickman was not made part of the contract between RBR aiid JR. He was not aware of aiiy complaints being madc by [* 5] Otfiiei- \ Bi-lad Intie\ K O OS- 17229 I 1gc h o 5 Hrichman to RBK ibout tlie siiou s e n ices pro\ ided at tlie Residence Inn during tlie period February 25, 2007 to F e b r ~ i a r ~ 2007. He was not aware of any complaints being made by RBR to JR about tlie snon 27, scrr ices pro\ ided ,it the Residence Inn during that period of time. .I ohn Lynch n 1s deposed on behalf of defendantlsecoiid third-party defendant JR Organics. H e I S the of the company. JR was hired by RBR to provide snow plowing services. JR would provide these h e r \ icc5 when requested by RBR s dispatcher. He identified the records regarding tlie snow plowin$ u ork dont: it the Residence Inn prior to plaintiffs accident. He never received any complaints froni aiiyoiie rcgarding JR s sei-\ices to the Residence Inn. With regard to the work done at the Residelice Lnn on Fcbruary 20. 2007 he went there at 3:30 p.ni. and left at 4:OO p.m. He returned at 8:30 p.m. until 9:00 p.m. in thc afternoon, lie plowed the entire parking lot, in the evening he plowed and salted the entire lot. JR \\;IS paid i n lid1 for the work done that day. om iier The proponent of a suiiimary judgment motion must make a prima facie showing of entitlement to 1 udgment as a matter of law, tendering sufficient evidence to eliminate any inaterial issues of fact from tlie case. To grant summary judgment it must clearly appear that no inaterial and triable issue of fact is presentcd (Sillman v Twentieth Century-Fox Filiit Corporation, 3 NY2d 395 [ 19571). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v N. Y.U. Medical Center, 64 NY2d 85 1 [ 19851). Failure to make such a showing requires denial of tlie motion, regardless of the sufficiency of the opposing papers (Winegrad v N. Y.U. Medicnl Center, stlpva). Once such proof has been offered, tlie burden then shifts to tlie opposing party, who, in order to defeat the motion for summary judgment, must proffer cvidcnce in admissible fonn . . . and must show facts sufficient to require a trial of any issue of I-iict (CPLR 32 l2[b]; Ziickerman v City o New York, 49 NY2d 557 [ 19801). f Fundamental to recovery in a negligence action, a plaintiff must establish that tlie defendant owed the plaintiff a duty to use reasoiiable care, that defendant breached that duty, and the resulting injury was proximately caused by defendant s breach (see Turcotte v Fell, 68 NY2d 432, 510 NYS2d 49 [1986]). To establish a prima facie case of liability in a slip and fall accident involving snow and ice, a plaintiff must prove that tlie defendant created a dangerous condition or had actual or constructive notice of tlie defective condition ( s w Zabbicr v Westwood, LLC, 795 NYS2d 319 [2d Dept 20051; Tsivitis v Sivarz Associates, LLC, 202 AD2d 594, 741 NYS2d 545 [2d Dept 20021). Furthemiore, a plaintiff seeking to hold a snow I eniovcil contractor licible must show that by virtue of a defendant s snow removal contract, defendant displaced the duty o f the landowner to safely maintain the premises (Espirzal v Melville Snow Contiwetors, Irrc., OS N Y U 136, 746 NYS2d 120 [2002]) and assumed a duty to plaintiff to exercise reasonable care to prevcnt dl foi-csccable harm to tlie plaintiff such that the plaintiff detrinientally relied on the defendaiit s pcrfcmiiancc of the derendant s duties under the snow renioval contract (see Palka v Servicemaster Mcriirrgc/izent Serviccs, 83 NY2d 579, 61 I NYS2d 817 [1994]; Pavlovich v Wade Associcrtes, Inc., 274 AII2d 383, 71 0 NYS2d 615 [2d Dept 2000]), or that the defendant s actions advanced to such a point as to h l i \ c launchcd 1 force or instrument of harm (Pavfovichv Wade Associates, Inc., s ~ ( p r u ) . 1Vheii i pcu-ty7including a snow removal contractor, by its affirmative acts of negligence has crcated e\xci-b,itcd ii dangerous condition which I S the proxiniate cause of plaintiff s injuries, it may be held IiCiblciii tort ( E y i i t d 1 Melville Siioiv Coiztrs., szipm; Figiieroci 1) Lcizariis B i i r ~ i a i Assocs., 269 A1>2d i 2 15. 7 0 3 NYS2cl 1 13 [ 1 st Dcpt 20001). In order to make a prima facie showing of entitlement to judgment mcittei of lci\v>thc contractor is required to establish that i t did not perfoini any snow removal 01 [* 6] opcr,itions i ilLi[cdto thc condition \\ hich c iiised plaintiffs i i i j i i i - 1 or, alteiiiati\ ely. t h d t i f . 11did perforiii such opci ~ t i o i i b .those operations did not create or exacerbate a dangerous condition (Preirclerville I Iiitcr.iitrtionrrlSrr.,~. $w.,10 AD3d 334, 781 NYS2d 110 [ 1st Dept 20041). I lie mo\ ing tlcfciidants ha\ e made a prima facie showing of their entitlement to summary jiid:pent. I lei-e. iindei the conti act between Brickniaii and Residence Inn, Bricknian was obligated oiily to plon siiou ,uicI ctpply s ~ l .ind sctnd when requested. Brickman s liniited contractual iindertaking to provide snow t I cmo\ 11 sei \ ices \\ is not compreliens~ve 1 and exclusive property maintenance obligation which entii ely tIisp1,iccd thc property owner s duty to iiiaiiitaiii the premises safely ( ~ c e , Lirtcirello v Cofirz Serv. Sys., 3 1 i D 3 d 390. 8 17 NYS2d 660 [2d Dept 20061; Kcrtz v Pdtntcirk Stores, 19 AD3d 371, 796 NYS2d 176 [ I d I k p t 20051 ) The I-ccordestablishes that the sub-subcontractor who actually did the work, JR, complt.ted i t ? sno\\ plo\\ ing and salting activities at the Residence Inn approximately 9:00 p.m. on February 26, 2007. Plainti I l testificd that she arrived at the hotel sometime between 5:30 p.m. and 9:00 p.ni. that same evening She did not see ice anywhere. The roads and parking lots had been plowed. She could see tlie blacktop lot. sui-fxe of the parl.c~ng After checking in, she went back to her car but did not observe ice anywhere. Thc nclt niorning she observed one-quarter to one-half of an inch of ice on her vehicle s windshield. Shc ilso test1 fied that it had snowed ovemi,oht. Brickinan established that neither the manager of the Resitlencc Inn. nor myone clse contacted Brickiiian to perform any services on February 27, 2007. Thus, none of tlie defendant s ale I-csponsible for the snow on the ground may have fallen between the time JR completed its \\ orlt on the evcning of February 26, 2007 and the afternoon of February 27, 2007. Therefore. no action of thc iiiovinz dcfendants created or exacerbated the condition which allegedly caused the plaintiffs accident ( cc Espiiirrl v Meh~illc Snow Contrs. and Prenderville v Iizteriintioiial Serv. Sys., siipvii) I n response the plaintiff and the defendants Briad and Residence Inn failed to submit evidence in admissible foi-ni sufficient to create an issue of fact. It is speculated that defendant JR failed to plow the 1 m L part of the parking lot or that tlie ice 011which plaintiff alleges to have slipped was caused by the niclting .ind i-c-l rec/iingof snow burrs left behind after the plowing. There is, however, no evidence i n the I-ocoi-dto support these claims. The speculative claim that a contractor caused or created an alleged icy condition through inconiplete snow removal is insufficient to defeat the contractor s motion for summary 1 iid~emcnt (Crosthivaite v Acndin Realty Trzist, 62 AD3d 823, 879NYS2d 554 [2d Dcpt 20091; Zabbin v I P0.5 t woocl, L L c,s 11(?1 (1) o f the foregoing, each of motions (#004, #005 and #006) for summary judgment dismissing p l ~ i i i t fl s coniplaint and all third-party claiins asserted against the moving defendants arc gi-anted. i 111 light 4 FINAI, DISPOSI I ION 2 /

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