Peluso v Train City, Ltd.

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Peluso v Train City, Ltd. 2014 NY Slip Op 33405(U) December 1, 2014 Supreme Court, Bronx County Docket Number: 307474/2011 Judge: Mary Ann Brigantti Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] 14 Bronx County Clerk ME C URT STATE OF NEW YORK UN Y OF BRONX TRIAL TERM - PART 15 Plaintiff, DECISION I ORDER -agains - Index No. 307474/2011 CITY, LTD., Defendant. --- ---- -------- -----------------------------------------------------)( T CITY, LTD., Third-Party Plaintiff, Index No. 83701/2012 -again S EV 'S LA DSCAPING & LAWNCARE, INC., Third-Party Defendant --- ---- -------- -----------------------------------------------------)( 1,2,3 4,5 6,7 8,9 10 11 In an ction seeking damages for personal injuries arising out of an alleged slip and fall ac ide t, defe dant Train City, Ltd. ("Train City") moves for an Order (1) dismissing the c mpl int as discovery sanction pursuant to CPLR 3126 due to the plaintiff Angela Peluso (" lai tiff')'s spoliation of evidence; (2) in the alternative, an Order granting summary judgment to Tran City ursuant to CPLR 3212(b), (3) in the alternative, and Order granting Train City s mm ry jud ment on its third-party action against third-party defendant Steve's Landscaping & L wn are, In . ("SLL") for common law indemnification. Plaintiff opposes the motion. L moves for an Order (1) granting summary judgment on the issue ofliability, and 1 [* 2] I FILED De 11 2q14 Bronx County Clerk dis iss ng the third-paliy'complaint: Pursuant to CPLR 3212. Plaintiff and Train City opposes the mot on. Pl~ntif~ cros~-mo~es for an ~rder extending~er time to serve an amended complaint up n d fendan~ SLL pursuant to CPLR 306-b. In the interest of judicial economy, the above are co~solidated and disposed of in the following Decision and Order. ~ackground ccordi~g to the complaint, on January 29, 2011, at approximately 5:00AM, Plaintiff d felll on an icy condition near the premises located at 515 Bement Avenue, Staten I ew Y<tk. Plaintiff testified that on January 28, 2011, at around midnight, she left her ap e t inth¢ Bronx to go to a friend's house. Before leaving, she had taken Oxycodone and Ga ape tin, bu~ could not recall how many doses she took. Plaintiff remained at her friend's til 2-3:pOAM, when she left to go to a bai in Manhattan. Plaintiff recalled staying at the proxirpately 1 hour. She then took a bus to meet another individual who drove her to ent Av~nue in Staten.Island. When they arrived at the location, Plaintiff exited the veh cle d tool: two or three steps. She testified that she took one step onto the street, and two step on o the sf ewalk, and then fell while reaching for the door. Plaintiff related that there was "tw inc es of~lack ice" on the ground that looked "absolutely clear." She was not looking at I d prio~ to the accident. After her fall, Plaintiff testified that another witness observed a the ro pi e with ice coming out of the bottom and leaking water onto the sidewalk. Train City th t Plaint~ff provided no statement from this witness, or expert opinion reg~ding whether the rain pipe c'lused ice to accumulate and cause the accident. Plaintiff stated it was not sno ing when tjer accident occurred and did not remember if it was sleeting~ ain Citr provides weather records that indicate there was light snow in the late evening 28, 2011, from 9:51:-10:51PM, hours prior to the accident. Between January 26 and 7, 2011, there were approximately 15 inches of snowfall. Plaintiff testified that she took pho ographs of the accident location with her phone after she fell, and provided them to her · atto eys Plain~iff, however, failed to produce these photographs during discovery and has ! • '. th t they o/e .unavailable. i • S uart Waldman testified on behalf of Train City which owned 515 Bement Avenue. He 2 [* 3] FILED De 11 2014 Bronx County Clerk that T~c,iin 9ity hired SI.,L to perform snow removal at the premises. There was no ontract with SLL, but SLL was required to clear the sidewalks within 30 minutes after I the cess tion o~ snowfall. Mr. Waldman testified that Train City never received any complaints or iola ions re~arding SLL's snow removal efforts. Mr. Waldman was at the premises from I ' Mo da througf Friday every week, and on occasion observed SLL remove snow. He never any corplaints regrading a snow or ice condition existing at the premises. During , SLLlproduced invoices for snow removal performed at the premises on January 26 i and 27, 011. At those times, SLL removed snow and applied salt. ! I teve T'tner of SLL testified that SLL performed snow and ice removal on January 26 I and 27, 011, at the subject location. It was SLL's practice to apply calcium chloride with a . spr ade once t~e sidewalks were clear of snow. SLL would inspect the sidewalks upon co plet on oftie work. Mr. Titner was present for this snow removal work. He noted that ! did not retkn to the site after completion of the work on January 27, 2011, because it had no obli ati n to doi so, and SLL received no additional requests for work at the premises. rain C~ now moves to strike the complaint as a sanction for spoliation of evidence. The Plai tiff coP-firmed at her deposition that she took photographs of the ice condition on the I nig t,of er accident. Despite subsequent demands, however, Plaintiff has failed to produce tho e ph tograp~s and has stated that they are unavailable. I I the alternative, Train City moves for summary judgment, dismissing Plaintiffs plai t. Train City contends that it adequately discharged its duties to maintain its property, sine it "red a ~now removal company, SLL, to maintain the premises in the event of snow or ice con itio s. Tr~in City also argues that there is no evidence that it created, or had actual or con true ive not~ce of this hazardous condition. Plaintiff herself testified that she could not see the '.bla k ice" Jfter she fell. ' . i Moreover, Train City notes that there was appreciable snow fall in the our beforel Plaintiffs accident, thus the ice condition could have been formed during that tim . Tr in Cit)f argues that they would have had no duty to address a snow or ice condition that I fo ed nly hotfrs before this accident. I rain Ci~ asserts alternatively that they are entitled to judgment as a matter of law on I thir -party !complaint against SLL seeking common law indemnification. Train City argues 3 [* 4] FILED De 11 2Q14 Bronx County Clerk tha the evidenfe demonstrates it was no! actively negligent, and that if Plaiontiff s accident was ca sed y negligent snow removal efforts, those efforts were performed by SLL. LL mJves for summary judgment, dismissing the third-party complaint. SLL contends I tha it p rform~d snow and ice removal at the subject location in accordance with their agreement I wit Tr in Ci~, to the satisfactionofTrain City. Upon leaving the premises, there was no snow or i e c nditio4, according to Steven Titner. SLL argues that there is no evidence that their I wo k "l unche4 an instrument of harm" to Plaintiff so as to render them liable in this matter. laintiff opposes both motions. Plaintiff contends that Train City has not demonstrated I . tha the subjectlphotographs were a "key piece of evidence" that was integral to their defense. Mo eov r, ther¢ is no evidence that Plaintiff intentionally or negligently disposed of the ! pho ogr phs. IJ!l any event, Plaintiff argues that the defendants have not established that they hav su fered ptejudice by not having an opportunity to inspect the photorgraphs, so as to require trik ·ng of tpe complaint. Regarding the summary judgment motion, Plaintiff argues that Tran C"ty had. non-delegable duty to maintain the sidewalk. Plaintiff argues that she described the ce c occ nditio~ as "two inches;' of ice that must have been the result of the snowfall that e from ~anuary 26 to January 27, 2011, or two days before this accident. Although there ', was "tra e" pre~ipitation the night before, that precipitation did not result in any accululation. Ace rdi gly, thhe is evidence that the ice condition lasted for 48 hours and thus Train City is ch gea le withl constructive notice .. Plaintiff also contends that third-party defendant SLL ! a dutyiof care. Plaintiff testified that she saw no sand or salt buckets in the area, and there i~ a genuine issue of fact as to whether SLL negligently performed its snowI I laintifflalso seeks additional time to serve SLL with an amended complaint. On August 27, 013 an Or~er was entered allowing Plaintiff leave to serve an amended answer within 30 ! days. Pl intiff fy.iled to do so, but now argues that it must be granted additional time to serve the pleadi~g in the interest of justice. ain City opposes SLL's motion, arguing that ifthere was a hazardous condition on the 1 ·ses it was 1the created by SLL, who was responsible for performing snow removal on the 4 [* 5] FILED De 11 2q14 Bron~ County Clerk I IL standard o:fReview I i To be ~titled to the "drastic" remedy of summary judgment, the moving party "must e a prima ~acie showing of entitlement to judgment as a matter of law, tendering sufficient I evi en e to de*'1onstrate the absence of any material issues of fact from the case." (Winegrad v. Ne .Y; rk Uni~ersity Medical Center, 64 N.Y.2d 851 [1985]; Sillman v. Twentieth Century-Fox C rp., 3 "*.Y.2d 395 [1957]). The failure to make such prima facie showing requires denial e f otion, egardless of the sufficiency of any opposing papers. (Id., see also Alvarez v. ' Pr spe t Hosp.I, 68 N.Y.2d 320, 324 [1986]). Facts must be viewed in the light most favorable tot en n-movrng party (Sosa v. 4&h Street Development LLC., 101A.D.3d490 [1st Dept. 2012]). Oncealmovant meets his initial burden, the burden shifts to the opponent, who must then pro uc sufficifnt evidence, also in admissible form, to establish the existence of a triable issue of ct ( ucker~an v. City ofNew York, 49 N.Y.2d 557 [1980]). When deciding a summary jud me t moti~n the role of the Court is to make determinations as to the existence ofbonafide iss es o fact ru).d not to delve into or resolve issues of credibility (Vega v. Restani Constr. Corp., 18 .Y. d 499 ~2012]). If the trial judge is unsure whether a triable issue of fact exists, or can rea ona ly con1lude that fact is arguable, the motion must be denied. (Bush v. Saint Claire's Ho ita, 82 N.lf.2d 738 [1993]). i i I I. t 4-Pplicable Law and Analysis I otion . Strike Answer - Spoliation rain CifY's motion to strike the complaint for spoliation of evidence, pursuant to CPLR i , is enied.I Even ifthe apparent deletion of the subject photographs is considered I "sp liati n," Tr~in City has not established that the "extreme sanction" of striking the complaint ted (seb Alleva v. United Parcel Service, Inc., 112 A.D.3d 543 [1st Dept. 2013]). The hs wete not the sole means for Train City to establish a defense to the action (Id., citing i . Fish, 179 A.D .3d 481 [1st Dept. 201 O]), and their absence, accordingly, does not fatally i ise theldefense (see Fatash v. Tepler, 294 A.D.2d 396 [2°d Dept. 2002]). Train City I 5 [* 6] FILED De 11 2014 Bronx County Clerk se k a les~~r ~anction, such as an adverse inference charge, if deemed appropriate by the co (All~va, supra). . I ! ummafy Judgment for Train City I ext, T~ain City moves for summary judgment,. dismissing the complaint with prejudice. I inistr4tive Code of the City of New York, §7-210 imposes upon owners of real property I . ative ~uty to maintain abutting public sidewalks in a reasonably safe condition. The ' I du er ated byl §7-210 is non-delegable. (Cook v. Consolidated Edison Co. ofN Y, 51 A.D3d I 44 , 44 D st D+pt. 2008]). Accordingly, evidence that Train City retained a snow removal . ! ' con ract r, alotje, does not warrant dismissal of the complaint. Train City argues that they are I enti led o dism~ssal of the complaint because they did not create the allegedly hazardous ! con itio , or h~ve actual or constructive notice. Indeed, to impose liability in a slip-and-fall cas , a efend~t must have either created or had actual or constructive notice of the dangerous con itio whic~ caused the injury (Smith v. Costco Wholesale Corp., 50 AD3d 499, 500 [1st ·De t 20 8]; Mdtias v. Rebecca's Bakery Corp., 44 AD3d429 [1st Dept 2007]). "To constitute i ive no¥ce, a defect must be vi~ible and apparent, and must exist for a ~ufficient length efore ¢.e accident to permit defendant's employees to discover and remedy it" (Barrerra i ork Citf Tr. Auth., 61AD3d425 (1st Dept 2009]). When a defendant moves for judgn:ient in a slip-and-fall case, it has the burden of demonstrating that it neither or had (notice of the allegedly dangerous condition ( see Manning v. Americold Log "stic , LLC, 133 AD3d 427 [1st Dept 2006] [on a motion for summary judgment, "defendant met its i itial b~den of demonstrating, prima facie, that it did not create the alleged hazard or I , hav act al or c~nstructive notice of it"]); Giuffrida v. Metro N Commuter R.R. Co., 279 A.D.2d I 403, 404 [1st D¢pt 2001] ["Contrary to defendant's suggestion, it is not plaintiffs burden in opp sin the m~tions for sunimary judgment to establish that defendants had actual or ! . con true ive notice of the hazardous condition. Rather, it is defendants' burden to establish the lack of n tice asl a matter of law"]). ere, Tr.in City failed to satisfy their initial burden of establishing entitlement to jud en as a m~tter of law with respect to constructive notice of the allegedly hazardous 6 [* 7] FILED De 11 2q14 Bronx County Clerk I Tra~n . T City failed to submit any evidence of someone with ·... personal knowledge as to ... .,.,...... . . . .... .. ... I w en o e of it~ representatives last inspected the accident area, or evidence of the condition of ! th ace dent ar¢a before Plaintiff's alleged fall (Spector v. Cushman & Wakefield, Inc., 87 A.D.3d 42 [I8 Dept. 4011]). The last time someone was at the accident location appears to be January I . 27, 2011, whe~ SLL was performing snow removal services following a storm that resulted in ap rox ·mately 115 inches of snow in the area. Weather records demonstrate that the temperatures I flu tua ed betvfeen 37 degrees and 30 degrees on January 28, 2011, and between 38 degrees and 32 egr es on t~e day of the accident, with "t~ace" precipitation in the evening hours. There is, ho ev , no in~ication that the premises were inspected at all after SLL performed their services. D fen ants ar$ue that Plaintiff's own testimony (describing the condition as "black ice" that was I "a solu ely de<ltr") establishes that the ice condition was not "visible or apparent" (see Gordon v. I ~ . Am ric n Mus4um ofNatural History, 67 N.Y.2d 836 [1986]). This is the argument proffered by I • the diss nt in s'J(ector - which noted that the plaintiff had only described the condition as "black that h~ did not notice it until he was kneeling close to the ground after slipping (87 ! t 424).! The majority in Spector did not adopt the dissent' s view. In Wright v. Emigrant Sav 'ngs Bank, t~e First Department likewise concluded that the defendant did not establish prima Jae e en itleme4t to summary judgment as a matter of law where it failed to submit evidence con em ng sno'{v/ice removal and inspection efforts taken on the day of the accident with respect I tot e a ofthf fall (112 A.D.3d 401 [1st Dept. 2013] see also Rodriguez v. Bronx Zoo Rest., i . Inc., 11 A.D.3~ 412 [I8t Dept. 2013], compare Rodriguez v. 705-7 East 1791h St. Housing Dev. ' Fu d C rp., 791A.D.3d 518 [1st Dept. 2010][defendant satisfied initial burden through both plai tif s own testimony as well as that from defendant's employee detailing last time premises was ins ected]; isee also Dominguez v. 2520 BQE Assoc., LLC., 112 A.D.3d 550 [1st Dept. 2013]) (cf to ard v. la.E. Plastics, 11A.D.3d862 [3rd Dept. 2004]; Carricato v. Jefferson Val. Mall Ltd. Par ership, 299 A.D.2d 444 [2nd Dept. 2002]). Moreover, the record before this Court I pres nts eviden¢e that tempera~es remained at or below freezing the entire day following the ! • sign'fic t sno"1£all that occurred on January 26 and 27. efendafit has also not established as a matter of law that the ice condition was created by a "s orm in pro~ess" -to wit, the trace snowfall occurring between 9:51PM and 10:51PM the 7 [* 8] FILED De 11 2014 Bronx County Clerk nig t b fore th!s incident, a~ <:>pposed to t~e significant sno~all that occurred two days . ' be reh d (se¢ Mike v. 91 Payson Owners Corp., 114 A.D.3d 420 [1st Dept. 2014]; Vosper V. ' ' i Fi s 1 rJh, LLr., 11 OA.D.3d 544 [1st Dept. 2013]). Plaintiff described the condition of the ! sid wal as "nyo inches of black ice" yet it is unknown whether she is referring to the thickness oft e p tch or hs dimensions. Permitting Plaintiff all favorable inferences, it must be I • <let rmi ed that Train City has failed to demonstrate that it lacked constructive notice of this I umma~ judgmen~ on Train City's Third-Party Complaint rain C ty' s motion for summary judgment on the issue of common law indemnification defendant SLL is denied. A party seeking common law indemnification must de ons ate no only that it is not guilty of any negligence beyond statutory liability, but must I als pro e that the proposed indemnitor was guilty of some negligence that contributed to the i - ace' den (see Mf,kelatos v. Theofilaktidis, 105 A.D.3d 822 [2nd Dept. 2013). In this matter, Train i Ci fail d to dtjmonstrate its own freedom from negligence; as they have not established a lack I of c nst ctive :p.otice of the allegedly hazardous condition (see Holub v. Pathmark Stores, Inc., 66 .D. d 741 (2nd Dept. 2009]; Urban v. No. 5 Times Square Development, LLC, 62 A.D.3d I ept. 2~09]; Prenderville v. International Service Systems, Inc., IO A.D.3d 334 [JS1 Dept. 200 I n. • I i L's ~tion for Summary Judgment i LL has !filed a motion to dismiss the third party complaint of third party defendant Train I City S L argu~s that it is entitled to dismissal of the third-party complaint because there is no ! evid nee that th¢ir snow removal activities were insufficient, or caused the allegedly hazardous I I . ice ond tion. $LL performed snow and ice removal in response to a 4-5 inch snow storm on I Jan 6, and~ 15 inch snow fall that occurred the next day, Januar)r 27, 2011. The principal - I for LL estifie~ that on those days, all snow and ice was cleared from the subject sidewalk, and hlorid, was applied. No complaints were made about the work performed, and SLL 8 [* 9] I FILED De 11 2~14 Bronx County Clerk rec ive no ~~1i~ional r~q11~sts for work from the landlord since Jan11ciry 27. A representative fro T ain Ci~ testified that he never had any problems with SLL's work and it was always co ple ed to hfs satisfaction. SLL argues that the mere act of shoveling snow and applying salt xacer~ate a dangerous condition or "launch an instrUment of harm." Moreover, weather rec rds indicat~ that trace amounts of snow fell between the time SLL left the premises and the tim of he acc~dent. Under these circumstances, SLL argues that it would be speculative to did not i . opi et at the t~o-inch patch of black ice existed when SLL was at the premises two days before ,. n gene~al, a contractor does not owe a duty of care to a non-contracting third party (Es ina v. Melrille Snow Constr., 9S N.Y.2d 136, 139-141 [2002]). Such a duty does arise, ho eve , wher~ a contractor "who undertakes to perform services pursuantto a contract neg ige tly cre1tes or exacerbates a dangerous condition so as to have 'launched a force or nt of h~' (Prenderville v. International Service Systems, Inc., IO A.D.3d 334 [1st ! De t. 2 04], ci'ng Espinal, N.Y.2d at 141-42). SLL, who provided snow removal services for the cci ent locrtion two days prior, must therefore demonstrate that its efforts did not create or exa erb te a dctjigerous situation. his cJurt finds that SLL satisfied its initial burden in this respect. SLL provided i that it performed its requested duties in response to the snow storm that occurred two day pri r to this accident. Steve Titner, who performed snow removal on that date, testified that ther · w no sn~w or ice in the area when the work was completed. SLL received no further ·.I req ests for snor removaJ. SLL had no duty to continue to monitor the condition of the side al after p~rforming theif work. No other events occurred after SLL left the property that I "tri ger d" SLL!' s duty to return and perform more services. Merely plowing or salting in ace rd ce wit~ an agreement is insufficient for a factual finding that the work either created or I ed a d4ngerous condition (see Tamhane v. Citibank, NA., 61 A.D.3d 571 [1st Dept. respotj.se, Plaintiff and Train City have failed to raise a triable issue of fact. The fact I I lai tiff enqountered ice at the scene and observed no salt does not raise a triable issue of s to wheth~r SLL exacerbated a dangerous condition. Indeed, the Court of Appeals 9 [* 10] FILED _De 11 2014 Bronx County Clerk I I I . . r{!c gaj .~clJ45!t~nP\VJ~illQY.~1 ~ffQf1~ 1!1'3-Y l~!lye, r~~igµ11l ~119\V P.rj9e in. an area, a11d !Ile>.re ·.. .. evi enc is nee~ed to demonstrate that the contractor left the area in a condition that was more I d ger us thanj when they started (see Lenti v. Initial Cleaning Services, Inc., 52 A.D.3d 288 [1st De t. 2 08], citing Espinal, supra, 98 N.Y.2d at 142). In Prenderville v. International Service Sys ems Inc., 1b A.D.3d 334 [1st Dept. 2004]), there was evidence that the defendant created a ! haz do s con~ition within a marble curb cut, where the plaintiff encountered "slushy ice" I two piJes of snow, with no salt or sand in the area. In Figueroa v. Lazarus Burman 69 A.~.2d 215 [1st Dept. 2000], the defendants admitted that the parking lot was not ! salted br sanded. Plaintiff has only argued in opposition papers that she encountered an I ice ate , and d~d not see "salt or sand buckets" in the area. This is patently insufficient to raise a g nui e issue lof fact as to whether SLL launched a force or instrument of harm (see also I . . Ru al.ff . Woo1land Pond Comminity Assn., 109 A.D.3d 810 [2nd Dept. 2013], citing Church v. Cal aha Indus.I, 99 N.Y.2d 104, 112 [2002] [speculative to assume that failure to sand and salt ren ere prope~ in a less safe condition than before snow removal efforts had begun]). Since SL is ot liabl~ to Plaintiff, Train City is not entitled to common law indemnification against it (see Ko an v. for ~orth Street Comm~nity, LLC, 81A.D.3d429 [1st Dept. 2011]). SLL's motion ary jufgment is therefore granted, and the third-party complaint is dismissed. ( ) Plafntiff's Cross-Motion light ()f the foregoing, Plaintiffs cross~motion seeking. leave to serve an amended co lai .t again~t SLL is denied as SLL owed no duty to Plaintiff and her claims or potential i s a· ainst S~L are dismissed. I Qonclusion ccordi~gly, it is hereby ! I RDE~D, that Train City's motion to strike the complaint for spoliation of evidence is d it is !further, i I RDE~D, that Train City's motion for summary judgment, dismissing the complaint, is d it is f11her, 10 [* 11] FILED De 11 2q14 Bronx County Clerk . ' s 0 RDEµD,. that Tr.a.in City'.s motion for. summary judgment on its cross-claims. against . fo commpn law indemnification, are denied, and it is further, I .I ORDERED, that SLL's motion for summary judgment, dismissing the third-party pl ·nt, is granted, and the third-party complaint is dismissed with prejudice, and it is further, I ORDERED, that Plaintiffs cross-motion for leave to serve an amended complaint is · de ied. i his cobstitutes the Decision and Order of this Court. Da ed: / i +--~-t-~1---1---~~~ , 2014 Hon. Mary Ann Brigantti, J.S.C .. 11.

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