Martinez v G&R Garage Inc.

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Martinez v G&R Garage Inc. 2017 NY Slip Op 31560(U) June 15, 2017 Supreme Court, Bronx County Docket Number: 22152/12 Judge: Ben R. Barbato 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] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ------------------------------------------x ALTEMIS MARTINEZ, DECISION AND ORDER Plaintiff (s), Index No: 22152/12 - against G&R GARAGE INC., MANHATTAN PARKING SYSTEMS, LLC AND THE CITY OF NEW YORK, Defendant(s). ----------------------------------------x In this action for personal injuries arising from the negligent maintenance of a premises, defendant THE CITY OF NEW YORK (the City) moves for an order granting it summary judgment and dismissal of the complaint and all cross-claims asserted against it. The City contends that it is entitled to summary judgment because with respect to the instant premises, it was an out of possession landlord with no maintenance responsibilities and as such, it cannot be liable. Alternatively, the City seeks summary judgment on its cross-claim for contractual indemnification against defendants G&R GARAGE INC. (G&R) and MANHATTAN PARKING SYSTEMS, LLC (Manhattan) on grounds, inter alia, that the agreement between G&R, Manhattan, Corporation and nonparty the New York City Heal th and Hospitals (the HHC) contains an indemnification clause. Plaintiff, G&R, and Manhattan oppose the City's motion, asserting, inter alia, that the City fails to establish that with respect to the instant premises, it was an out of possession landlord with no Page 1 of 30 [* 2] maintenance responsibility. For this reason, Manhattan and G&R contend that with respect to contractual indemnification, the City fails to establish, inter alia, that it was free from negligence. For the reasons that follow hereinafter, the City's motion is denied. A review of the pleadings establishes the following: On August 26, 2011, plaintiff tripped and fell on a pothole while at the parking garage within premises located at 234 East 149th Street, Bronx, NY (234). It is alleged that defendants operated, controlled, and maintained 234, that they were negligent in failing to maintain 234 in a reasonably safe her accident condition, the injuries such negligence caused therefrom. Within its answer, the City interposes several cross- claims against G&R and Manhattan, and and that resulting including one for contractual indemnification. The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hospital, Zuckerman v City of New York, defendant seeking summary 68 NY2d 49 NY2d 557, judgment must 562 320, 324 [1980]). establish [1986]; Thus, a prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, Page 2 of 30 [* 3] and not merely by pointing to gaps in plaintiff's proof (Mondello v Distefano, 16 AD3d 637, City Transit Authority, 638 [2d Dept 2005]; 304 AD2d 634, 634 Peskin v New York [2d Dept 2003]). movant meets his initial burden on summary judgment, Once the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562). The Court's function when determining a motion for summary judgment is issue finding not issue determination (Sillman Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957]). v Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). When the existence of an issue of fact is even debatable, summary judgment should be denied (Stone v Goodson, 8 NY2d 8, 12 [1960]). While the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. Notably, [t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must 'show facts sufficient to require a trial of any issue of fact.' Normally if the Page 3 of 30 [* 4] opponent summary is to succeed judgment motion, in def eating he too, a must make his showing by producing evidentiary proof in admissible form. The rule with respect to def eating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case (Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 [1979) [internal citations omitted]). Accordingly, generally, the opponent on a motion for summary judgment can have the court consider inadmissible evidence provided he tenders an excuse for failing to submit it in inadmissible form Phillips, 261 AD2d 269, 270 [1st Dept 1999). (Johnson v Alternatively, the court can consider inadmissible evidence tendered in opposition to a motion for summary judgment if the inadmissable evidence would otherwise be admissible at trial upon a proper foundation and raises questions of fact sufficient to defeat the motion (Phillips v Joseph Kantor & Company, 31 NY2d 307, 310 [1972); Buckley v J.A. Jones/GMO, 38 AD3d 461, 462-463 [1st Dept 2007); Levbarg v City of New York, 282 AD2d 239, 241 [1st Dept 2001); Eitner v 119 West 71st Street Owners Corp., 253 AD2d 641, 642 [1st Dept 1998)). Summary Judgment with Respect to Complaint The City's motion seeking summary judgment and dismissal of Page 4 of 30 [* 5] the complaint and all cross-claims is denied. On this record, the City fails to establish that as owner of 234, it relinquished all maintenance responsibility and control, such that it became an out of possession landlord with no liability to plaintiff. Thus, on this record, applying the law relative to premises liability, as owner of 234, given the nature of the condition alleged, the City can be charged with constructive notice of the pothole alleged such that summary judgment must be denied. Under the common law, a landowner is duty bound to maintain his or her property in a reasonably safe condition (Basso v Miller, 40 NY2d 233, 242 [1976]). Thus, the owner of a premises is required to exercise reasonable care in the maintenance of his property, taking into account all circumstances such as the likelihood of injuries to others, the seriousness of the injury, and the burden involved in avoiding the risk (id.). liability for a dangerous condition within a Accordingly, premises requires proof that either the owner created the dangerous condition or, that he had actual or constructive notice of the same (Piacquadio v Recine Realty Corp., Woolworth Company, 24 84 NY2d NY2d 967, 936, 969 937 [1994]; [1969]; Bogart v Armstrong v F.W. Ogden Allied Facility Management Corporation, 281 AD2d 317, 318 [1st Dept 2001]; Wasserstrom v New York City Transit Authority, 267 AD2d 36, 37 [1st Dept 1999]). Page 5 of 30 [* 6] A defendant is charged with having constructive notice of a defective condition when the condition is visible, apparent, and exists for a sufficient length of time prior to the happening of an accident to permit the defendant to discover and remedy the same (Gordon [1986]). v American Museum of Natural History, 67 NY2d 836, 837 The notice required must be more than general notice of any defective condition (id. at 838; Piacquadio at 969). Instead, notice of the specific condition alleged at the specific location alleged is required and, thus, a general awareness that a dangerous condition may have existed, is insufficient to constitute notice of the particular condition alleged to have caused an accident The absence of evidence demonstrating how (Piacquadio at 969). long a transitory condition existed prior to a plaintiff's accident constitutes a failure to establish the existence of constructive notice as a matter of law (Anderson v Central Valley Realty Co., 300 AD2d 422, 423 [2002]. lv denied 99 NY2d 509 [2008]; McDuffie v Fleet Fin. Group, 269 AD2d 575, 575 [2000)). To be sure, "where the hazardous condition is transitory, a defendant may establish its entitlement to summary judgment by demonstrating that the condition could have arisen shortly before the accident" (Betances v 185-189 Audubon Realty, LLC, 139 AD3d 404, 405 [1st Dept 2016); Rivera v 2160 Realty Co., L.L.C., 4 NY3d 837, 838 [2005); Brooks-Torrence v Twin Parks Southwest, 133 AD3d 536, 536 [1st Dept 2015)). In Brooks-Torrence, where plaintiff alleges to have tripped and fallen Page 6 of 30 [* 7] on a plastic bag located on steps, summary judgment finding, the court granted defendant in part, no constructive notice because "plaintiff testified that she did not see the plastic bag or any other debris on the staircase when she arrived at (id. at 536). building, only seeing the bag after she fell" Generally, on a motion for summary defendant's judgment a defendant establishes prima facie entitlement to summary judgment when the evidence establishes the absence of notice, actual or constructive (Hughes v Carrols Corporation, 248 AD2d 923, 924 [3d Dept 1998]; Edwards v Wal-Mart Stores, Inc., 243 AD2d 803, 803 [3d Dept 1997]; Richardson-Dorn v. Golub Corporation, 1998]). Notably, 252 AD2d 790, addition to the foregoing, 790 [3d Dept a defendant seeking summary judgment on grounds that it had no constructive notice of a dangerous condition, specifically a transitory one, must produce "evidence of its maintenance activities on the day of the accident, and specifically that the dangerous condition did not exist when the area was last inspected or cleaned before plaintiff fell" (Ross v Betty G. 2011]; Reader Revocable Trust, Green v Albemarle, LLC, 86 AD3d 419, 966, 966 [2d 421 Dept [1st Dept 2013]). If defendant meets his burden it is then incumbent upon plaintiff to tender evidence indicating constructive notice (Strowman that defendant had actual or v Great Atlantic and Pacific Tea Company, Inc., 252 AD2d 384, 385 [1st Dept 1998]). Page 7 of 30 [* 8] It is well settled that generally an owner who leases property to another, relinquishing possession, sustained upon that is not liable for injuries property unless ( 1) there is an agreement obligating the landlord to keep the demised premises in good repair (Putnam v Stout, 38 NY2d 607, 616-617 [1976]; Negron v Helmsley Spear, Inc., 280 AD2d 305, 305-306 [1st Dept 2001]; DeLeon v The Rajon Company, York Telephone 243 AD2d 366, Company, 157 366 [1st Dept 1997]; Manning v New AD2d 264, 266 [1st Dept 1990]); ( 2) there is a duty to maintain the demised premises imposed by statute (Stephen v Brooklyn Pub. Lib., 120 AD3d 1221, 1221 [2d Dept 2014]; Mercer v Hellas Glass Works Corp., 87 AD3d 987, 988 [2d Dept 2011]); or premises, (3) the landlord retains actual control of the leased or by course of conduct, assumes the responsibility to maintain such property (Cherubini v Testa, 130 AD2d 380, 382 [1st Dept 1987]; Reidy v Burger King Corporation, 250 AD2d 747, 748 [2d Dept 1998]; Davidson v Wiggand, 259 AD2d 799, 801 [3d Dept 1999]). There are, however, exceptions to the foregoing rule - only one of which is relevant here. who has An out-of-possession landlord - one relinquished control - may be held liable if he has a general right to reenter the premises, reserving the right to make needed repairs, and the condition alleged to have caused an accident involves a significant structural or design defect, which is contrary to statutory safety provisions (Malloy v Friedland, 77 AD3d 583, 583 [1st Dept 2010]; Hausmann v UMK, Page 8 of 30 Inc., 296 AD2d 336, [* 9] 336 [1st Dept 2002]; Nameny v East New York Savings Bank, 267 AD2d 108, 109 [1st is 1999]; 2 32 AD2d 22 6, Partnership, defect Dept one which Raynor 22 6 violates v [1st a 666 Fifth Dept Avenue 19 9 6] . statute Limited A structural prescribing specific maintenance responsibility, which includes the Administrative Code of the City of New York if it prescribes a specific maintenance responsibility and Multiple Dwelling Law § 78 (Guzman v Haven Plaza Housing Development Fund Company, Inc., 69 NY2d 559, 566 [1987]; Worth Distributors, Inc. v Latham, 59 NY2d 231, 238 [1983]; Manning v New York Tel. Significantly, Co., 157 AD2d violations of 264, 267-268 regulations do [1st Dept 1990]). not constitute a structural defect so as to give rise to liability in cases where a landlord is out of possession but nonetheless retains a right to reenter a premises (Velasquez v Tyler Graphics, LTD., 214 AD2d 489, 490 [1st Dept 1995]). The breach of a general maintenance provision of the Administrative Code of the City of New York, also not tantamount to a structural defect (Manning at 270; Bing v 296 Third Ave. Group, L.P., 94 AD3d 413, 2012] 413-14 is see [1st Dept ["Indeed, if the ramp were part of the sidewalk, landlord was not responsible for clearing it of snow or ice because the lease provided that tenant was responsible for maintaining its premises and removing snow and ice from the sidewalk. Thus, the motion court's application of Administrative Code of the City of New York § 7-210[b], that imposes liability on owners for, inter alia, their Page 9 of 30 [* 10] negligent failure to remove snow, ice, dirt, or other material from the sidewalk, was misplaced." [internal quotation marks omitted]). While prior notice of the defective condition alleged is a prerequisite to liability in any case alleging premises liability (Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]; Bogart v F. W. 24 NY2d 936, Woolworth Company, 937 [1969]; Armstrong v 281 AD2d 317, Ogden Allied Facility Management Corporation, 318 [1st Dept 2001]; Wasserstrom v New York City Transit Authority, 267 AD2d 36, 37 [1st Dept 1999]), when an out-of-possession landlord retains a right to reenter leased premises, he is charged with actual notice of any structural defect existing therein (Guzman at 566-657). In support of its motion, hearing and deposition the City submits plaintiff's 50-h transcripts wherein pertinent part, as follows: On August 26, she 2011, testified, in at approximately 9AM, plaintiff tripped and fell within the parking garage located within 234. Plaintiff was employed at 234, which houses Lincoln Hospital and was headed to work immediately prior to her accident. She had just parked her car on the fourth floor of the parking garage. garage She then took the stairs down to the second floor of the which traversed the contained garage's an entrance cement floor to on the the hospital. second As she floor, she tripped and fell on a pothole located thereat. The hole was two feet long, two feet wide and maybe an inch deep. Although this was Page 10 of 30 [* 11] plaintiff's customary route to work, and she recalls seeing many potholes at this location, she did not see the instant hole until after she stepped onto it. Prior to her fall, plaintiff had not made any complaints regarding the potholes. The City also submits Richard Marin's (Marin) deposition transcript wherein he testified, in pertinent part, as follows: In February 2011, Marin was employed by Lincoln Hospital, facility as Chief of Staff to the Senior Vice an HHC President. The hospital had a parking garage and both were owned by the City. With respect Manhattan, to the garage, its maintenance was delegated to doing business as G&R, pursuant to a written contract between HHC and Manhattan. Said agreement was dated November 2010. Marin's duties entailed the implementation of special projects. In 2013, when the person for whom he then worked retired, Marin became the Network Director of Contracts and Materials Management. In this latter role, Marin was responsible for overseeing contracts at the facility and ordering the hospital's supplies. In 2011, Marin did not have any responsibility regarding the parking garage within Lincoln Hospital, but Marty Levine (Levine), who at the time was the Network Director of Contracts and Materials Management, did. In 2011, it would have been Levine's responsibility to monitor the parking lot to ensure that its maintenance was being performed by Manhattan. Any issues regarding the garage would have been raised to Levine, Marin would only have gotten involved if Levine could Page 11 of 30 [* 12] not resolve them. While Marin testified that he never received any complaints regarding the garage prior to August 2011, and that he would have access to any complaints that were made, he testified that he did not search for such complaints. The City submits Mark Sollazzo' s deposition transcript wherein he testified, in pertinent part, as follows: in August 2011, he was employed by Lincoln Hospital as the Associate Director of Building Services. In that capacity, he was responsible for the overall operation of the environmental and linen services at the hospital, which meant he supervised housekeepers within the hospital. regard, to the garage at the hospital, it was a five With story structure and Sollazzo was responsible for the removal of snow from the garage's roof and sidewalks. The garage was operated by G&R, who was responsible for the garage's operation and the removal of garbage therefrom. responsibility and Maintenance that included of the the garage repair of was any HHC's potholes therein. The City submits Ralph Maldonado's (Maldonado) deposition transcript wherein he testified, in pertinent part, as follows: in 2011, Maldonado was Vice President and part owner of G&R. G&R operated the garage within Lincoln Hospital pursuant to a written contract between HHC and G&R, which contract he executed on behalf of G&R. Beyond the operation Page 12 of of 30 the garage, G&R had no [* 13] responsibility for maintenance of the garage. Lastly, the City submits the contract between HHC and G&R. According to the contract, G&R was selected to "manage the parking facilities currently located on the premises [at 234.]" Article 3.2 of the contract addresses maintenance of the parking garage and describes G&R's responsibilities as, inter alia, "[g]eneral groundskeeping including sweeping and rubbish removal from roadways and Parking Spaces." Article 12. 2, an indemnification clause, states [G&R] shall hold harmless and indemnify [HHC] and the City from liability upon any and all claims for damages on account of any neglect, fault, act of commission or omission or error in judgment of [G&R], its officers, trustees, employees, agents or independent contractors, except to the extent such claims are due to the sole negligence of [HHC] or City. Based on the foregoing, the City fails facie entitlement to summary judgment. to establish prima To be sure, an owner of real property is duty bound to maintain it in a reasonably safe condition (Basso at 242). Thus, the owner of a premises is required to exercise reasonable care in the maintenance of his property, taking into account all circumstances such as the likelihood of injuries to others, the seriousness of the injury, and the burden involved in avoiding the risk (id.). liability for a dangerous Accordingly, condition within a premises requires Page 13 of 30 [* 14] proof that either the owner created the dangerous condition or, that he had actual or constructive notice of the same (Piacquadio at 969; Bogart at 937; Armstrong at 318; Wasserstrom at 37). A defendant is charged with having constructive notice of a defective condition when the condition is visible, apparent, and exists for a sufficient length of time prior to the happening of an accident to permit the defendant to discover and remedy the same (Gordon at 837) . Here, where Marin testified that the City owned the garage wherein plaintiff testified she tripped and fell, duty to Moreover, maintain the premises where as here, in a the City had a reasonably safe manner. plaintiff testified that the condition alleged was not transitory - a pothole - and was in an area where she had seen similar conditions days prior to her fall, could be charged with constructive existence and be held liable. Thus, notice of the the City condition's the City fails to establish prima facie entitlement to summary judgement under the foregoing body of law. To the extent that the City urges the grant of summary judgment because it was an out of possession landlord, the record fails to establish entitlement to summary judgment under prevailing law. Significantly, it well settled that generally an owner who leases property to another, relinquishing possession, is not liable Page 14 of 30 [* 15] for injuries sustained upon that property unless (1) there is an agreement obligating the landlord to keep the demised premises in good repair (Putnam at 616-617; Negron at 305-306; DeLeon at 366; Manning at 2 66) ; ( 2) there premises imposed by statute is a duty to maintain the demised (Stephen at 1221; Mercer at 988); or (3) the landlord retains actual control of the leased premises, or by course of conduct, assumes the responsibility to maintain such property (Cherubini at 382; Reidy at 748; Davidson at 801). Here, while the City argues that it is an out of possession landlord, the record is bereft of such evidence. the proponent of summary judgment, the To be sure, as City must tender proof establishing the defense asserted (Mondello at 638; Peskin at 634). Thus, here, to prevail, the City must tender evidence that it leased the instant premises and that none of the exceptions which would otherwise render the foregoing defense inapplicable do not apply. The City fails to meet its burden. Indeed, on this record, besides testimony that the City owned the instant premises, there is absolutely no admissible evidence about the City's relationship to the garage. As such, the City fails to establish its status as an out of possession landlord. and G&R's maintenance Moreover, responsibilities to the extent that HHC for the garage could indicate the absence of any maintenance responsibilities by the City, the record establishes that G&R had little maintenance responsibility such that the bulk of such responsibility remained Page 15 of 30 [* 16] with either the City or HHC. that all maintenance Significantly, while Marin testified responsibility of the garage had been delegated to G&R, his testimony was belied by his inability to find support for such assertion in the agreement between HHC and G&R. Specifically, when asked to point to the section of the contract imposing the wholesale maintenance of the garage upon G&R, Marin pointed to Article 3.2, which as discussed above, does not impose Moreover, much maintenance responsibility upon G&R. testimony directly testified that HHC contradicts Marin's remained responsible testimony Sollazzo' s because he for maintenance of the garage, including the repair of any potholes. To the extent that the City submits additional evidence in reply, namely the agreement between it and HHC as it relates to the instant premises, the Court cannot consider Generally it. arguments proffered for the first time within reply papers shall not be considered by the court (Wal-Mart Stores, States Fidelity and Guaranty Company, 2004]; 11 AD3d 300, Johnston v Continental Broker-Dealer Corp., Inc., v United 301 [1st Dept 287 AD2d 546, 546 [2d Dept 2001]; Dannasch v Bifulco, 184 AD2d 415, 417 [1st Dept 1992]). Moreover, prevailing law makes it abundantly clear that the foregoing prohibition is meant to specifically preclude the consideration of new evidence, submitted for the first time on reply in order to cure deficiencies in the moving papers (Migdal v City of New York, 291 AD2d 201, 201 [1st Dept 2002] Page 16 of 30 [Court rejected [* 17] affidavit submitted with reply papers since it sought to remedy deficiencies in motion rather than respond to arguments made by Lumbermens opponent.]; Company, 218 AD2d 624, Mutual Casualty 625-626 [1st Company Dept 1995] v Morse Shoe [Court rejected defendant's reply papers which included two new documents provided to support a new assertion not previously made in initial motion.]; Ritt v Lenox Hill Hospital, 182 AD2d 560, 562 [1st Dept 1992] [Court rejected defendant's reply papers which contained a medical affidavit designed to cure the conclusory affidavit submitted with its initial motion.] ) . Here, it is clear that submitting the agreement between it and HHC - the City - in seeks to cure its failure to submit competent evidence on the issue of its status as an out of possession landlord within its initial moving papers. Such evidence should have been part of the City's moving papers, its omission fatal, such that it cannot be cured by evidence proffered for the first time on reply. Because the City fails to establish prima facie entitlement to summary judgment, the Court need not consider the sufficiency of plaintiff, Manhattan and G&R' s University Medical Center, opposition ( Winegrad v New York 64 NY2d 851, 853 [1985]). Summary Judgment With Respect to the City's Cross-Claim for Contractual Indemnification The City's motion seeking summary judgment on its cross-claim Page 17 of 30 [* 18] for contractual indemnification is denied. Since as discussed above, the City has failed to establish that it bears no liability and because on this record it could be charged with constructive notice of the defect alleged and therefore be found negligent, the City fails to establish prima f acie entitlement to contractual indemnification When a party seeks contractual indemnification, the party seeking indemnification need only prove that he or she was free from negligence, was held liable only by virtue of a statute imposing liability, and that there was a valid contract governing the indemnification (Uluturk v City of New York, 298 AD2d 233, 234 [1st Dept 2002]; Correia v Professional Data Management, Inc., 259 AD2d 60, 65 [1st Dept 1999]). party who will be Whether or not the indemnitor, the indemnifying the other, was negligent is irrelevant (Uluturk at 234; Correia at 65). While a claim for indemnification does not accrue until the indemnitee renders payment, thereby making any determination prior thereto a premature, determination prior to court the can time an nevertheless make indemni tee renders such a payment (Masciotta at 310; State of New York v Travelers Property Casualty Insurance Company, 280 AD2d 756, 757 [3d Dept 2001]; State of New York v Syracuse Rigging Company, 249 AD2d 758, 760 [3d Dept 1998]). While courts do in fact deny motions seeking summary judgment on a Page 18 of 30 [* 19] claim for contractual indemnification as premature, such denial is almost always on grounds that the indemnitee's negligence, if any is as yet undetermined, that being an essential prerequisite to contractual indemnification (Mckenna v Lehrer McGovern Bovis, Inc., 302 AD2d 329, 331 Williams v G.H. Development & [1st Dept 2003]; Construction Company, 250 AD2d 959, 962 [3d Dept 1998]; Gillmore v Daniel, 221 AD2d 938, 939 [4th Dept 1995]). When no issues exist as to the indemnitee's negligence, the court should and can issue a conditional determination judgment on the of the issue of primary action, indemnification pending thereby affording the indemnitee the opportunity to forecast to what extent he or she can expect to be reimbursed (Maciotta at 310; Travelers Property Casualty Insurance Company at 757; Isnardi v Genovese Drug Stores, Inc., 242 AD2d 672, Additionally, 674 even [2d Dept 1997]). when an indemnification clause limits reimbursement of legal fees to those in excess of those reimbursed by an insurance policy, the court can nevertheless conditionally grant indemnification and reimbursement (Collado v Cruz, 81 AD3d 542, 543 [1st Dept 2011]). While a party can by contract indemnify another for damages incurred, the words in a contract calling for indemnification must be strictly parties construed to achieve (Hooper Associates, Ltd. the apparent purpose v AGS Computers, Page 19 of 30 Inc., of the 74 NY2d [* 20] 487, 492 1989] (Court denied summary judgment on claim for contractual indemnification when plaintiff sought to collect legal fees incurred in suing defendant. Court held that contract did not expressly provide for indemnification and reimbursement of attorney fees stemming from the kind of action alleged.]; Lipshultz v K & G Industries, Inc., 294 AD2d 338, 338 [2d Dept 2002] dismissal contract of claim mandating for the contractual same indemnification failed require Szalkowski v Asbestospray Corporation, Dept 1999]. [1987] More 2003]). 868-869 [3d v Atlantic Scaffold contractual that the be clearly purposes of surrounding Ladder Co., & International, The foregoing, Inc., 303 AD2d 70 NY2d 774, foregoing circumstances, 309, 310 [1st Dept is premised on well settled principles of it is the agreement rather than reform it Thus, 777 see also Masciotta v contract interpretation in cases where a dispute arises. [1979]). the indemnification; 259 AD2d 867, [internal quotation marks omitted]); Diesel when Thus, [a] party is entitled to full indemnification provided intention to indemnify can implied from the language and the entire agreement and the facts and circumstances (Drzewinski (Court granted court's role (Grace v Nappa, Under the to enforce the 46 NY2d 560, "a written agreement that is complete, 565 clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Greenfield v Philles Records, Inc., Page 20 of 30 98 NY2d [* 21] 562, 569 [2002]; Vermont Teddy Bear Co., Inc. v 583 Madison Realty Company, 1 NY3d 4 7 0, 4 7 5 [ 2 004] agreement in a clear, enforced according ["when the parties set down their complete document, to its their writing should be terms"(internal quotation marks omitted).]). Here, as noted above, the City, as an owner of the garage and who on this record is not entitled to summary judgment could be charged with constructive notice of the defect alleged to have caused plaintiff's accident. could be found negligent, Thus, since, on this record, the City it fails to establish the absence of negligence, a prerequisite to summary judgment on its cross-claim for contractual indemnification. Moreover, on this record, where as per Article 3.2 of the agreement between HHC and G&R, G&R did not assume responsibility to repair any potholes in the parking garage, indemnification under Article 12.2 of the agreement is not warranted. As discussed above, the foregoing Article premises indemnification on G&R's negligence, which cannot exist, where as here, it was not required to repair the condition on which this suit is premised. Thus, the City fails to establish prima facie entitlement to summary judgment on its motion seeking contractual indemnification. Because the City fails to establish prima facie entitlement to summary judgment, the Court need not consider the sufficiency of Page 21 of 30 [* 22] plaintiff, Manhattan and G&R' s opposition University Medical Center, (Winegrad v New York 64 NY2d 851, 853 [1985]). Based on the foregoing, the Court shall also, upon a search of the record, grant summary judgment to Manhattan and G&R insofar as on this record, it is clear that they did not create the condition alleged to have caused plaintiff's accident. When a court is deciding a motion for summary judgment, it can search the record and, even in the absence of a cross motion, may grant summary judgment to a non-moving party (CPLR 3212[b]; Dunham v Hilco Constr. Co., Inc., 89 NY2d 425 [1996]). In fact, it is well settled that "a motion for summary judgment, irrespective of by whom it is made, empowers a court, even on appeal, to search the record and award judgment where appropriate" (Grimaldi v Pagan, 135 AD2d 496, 496 [2d Dept 1987]; Schleich v Gruber, 133 AD2d 224, 224 [2d Dept 1987]). A contractor hired to perform work is generally not liable in tort to a non-contracting third-party when he/she/it breaches a contract and said breach causes injury to a third-party (Stiver v Good & Church Fair Carting v Callanan Moving, Inc., 9 N. Y. 3d 253, 257 [2007]; Industries, Inc., 99 111 [2002]; & NY2d 104, Espinal v Melville Snow Contractors, Inc., 98 NY2d 136, 138 [2002]; H.R. Moch Co. v Rensselaer Water Co., 247 N.Y. Bugiada v Iko, 274 AD2d 368, 369 [2d Dept 2000]). Page 22 of 30 160, 164 [1928]; This is because, [* 23] contractors are generally hired to perform work pursuant to contract and "[u]nder our decisional law a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party" breach, (Espinal at 139). Thus, when there is a such contractors are generally only liable to the person who hired them, the promisee, and are not liable to third parties for any injuries obligation. resulting from a breach of their contractual Consequently, if a contractor is to be held liable for injury to a third-party occasioned by their work, scenarios must exist. one of three First, a contractor is liable for injury to a third-party if the putative [contractor] has advanced to such a point as to have launched a force or instrument of harm, or has stopped where inaction is at most a refusal to become an instrument for good (id. at 139, quoting, H.R. Moch, Co., at 168). a contractor is liable to an injured Stated differently, third-party when said contractor causes or creates the condition alleged to have caused injury (id. at 140; Church at 111). Second, a contractor is responsible for a non contracting third-party's injury when the third-party detrimentally relies on the contractor's continued performance and the contractor's failure to perform, positively and actively, causes injury (id. at 11-112; Espinal at 140; Eaves Brooks Costume Company, Inc. v. Y.B.H. Realty Corp., 76 N.Y.2d 220, 226 [ 19 9 0 ] ; Bug i a da at 369 ) . Lastly, Page 23 of 30 when the contract is [* 24] comprehensive and exclusive as to maintenance, so that due to its breath the contractor displaces, and in fact assumes the owner or possessor's duty to safely maintain the premises, said contractor is liable to an injured third-party resulting from a breach of the services undertaken - such as the failure to maintain the premises in a safe condition (Church at 112; Espinal at Servicemaster Management Services Corporation, Palka 140; 83 NY2d 579, v 589 [1994]; Bugiada at 369). In Espinal, for example, the Court concluded that defendant, a contractor, was not liable to plaintiff for her alleged slip and fall on ice. Specifically, plaintiff slipped and fell on an icy condition, which defendant, as per a contract with the owner of the premises, was charged with abating (id. at 137-138, 142) . Specifically, plaintiff alleged that the snow within the parking lot of the premises she was traversing had not been properly removed and that, thus, the contractor created the condition which caused her fall. (id.). In granting defendant's motion for summary judgment, the court reiterated the well settled rule that "[u] nder our decisional law a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party" (id. at 138). In discussing the exceptions to the foregoing rule, the court nevertheless held that by clearing snow as the contract required, the contractor had not created a dangerous condition, and as such was not liable under plaintiff's Page 24 of 30 [* 25] theory that the contractor created the condition alleged (id. 142). at Further, the court held that defendant was not liable under the exclusive control exception to the general rule, since as per the contract between the contractor and the owner, the retained its duty to maintain and inspect the premises owner (id. at 141) . Similarly, motion for in summary the Church, judgment, court after granted a subcontractor's concluding that it was not liable to the plaintiff for any breaches of its contract with the State, the entity who hired the contractor. In that action, the subcontractor was hired to install guide rails along a portion of the state thruway by a contractor who was initially hired by the State (id. at 109, 114). In that case, plaintiff was an occupant of a vehicle whose driver fell asleep at the wheel, causing said vehicle to careen down an embankment accessible through an area which was slotted for guide rail installation, but upon which the subcontractor had yet to begin work (id.). The court held that the subcontractor was not liable to the plaintiff under any of the exceptions cited above (id. at 109-110). In holding for the subcontractor, the Court held that the subcontractor's failure to install guide rails at the location of the accident therein, did not cause or create a dangerous condition, since the subcontractor's failure to install guiderails thereat did not make the are therein any more dangerous than it was without the guide Page 25 of 30 [* 26] rails (id. at 112) . Specifically, the court noted that had the subcontractor created the dangerous condition alleged, liability would have been extant but that in that case, the breach of contract consist[ed] merely in withholding a benefit where inaction is at most a refusal to become an instrument for good. [Specifically,] San Juan's [the subcontractor] failure to install the additional length of guiderail did nothing more than neglect to make the highway at Thruway milepost marker 132. 7 safer--as opposed to less safe--than it was before the repaving and safety improvement project began (id. at 112 [internal citations and quotation marks omitted]; see H.R. Moch Co. at 168 ["The query always is whether the putative wrongdoer has advanced to such a point as to have launched a force or instrument of harm, or has stopped where inaction is at most a refusal to become an instrument for good."]; Bono v Halben's Tire City, Inc., 84 AD3d 1137, 1139 [2d Dept 2011] [Defendant automobile repair shop's failure to warn a party that his vehicle brakes could fail if he did not replace the master cylinder on his car did not constitute the launching of a force or instrument Altinma v East 72nd Garage Corp., 54 AD3d 978, of harm.]; 980 [3d Dept 2008] [a defendant's alleged negligent failure to warn the decedent's employers regarding man-lift or elevator inspection requirements amounted to a finding that the defendant merely may have failed to become an instrument for good, which was insufficient to impose a Page 26 of 30 [* 27] duty of care."]). Thus, because at best, in Church the omission alleged was nonfeasance as opposed to malfeasance, which failure merely failed to make the highway safer, the court concluded that such inaction was not tantamount to causing and creating a dangerous condition (id. at The 112). court further concluded that there was no detrimental reliance by plaintiff upon the subcontractor's and that the contract between the subcontractor and the State was not one whereby the contractor assumed all safety related obligations with regard to the guiderail system so as displace obligation to safely maintain the guiderails specifically, comprehensive (id. the State's at 113). More the court noted that the contract therein was not and exclusive with respect to inspection supervision vis a vis the installation of the guiderails, and and as such, the contractor did not displace or assume the State's duty to safely maintain the guiderails (id.). In addition to the foregoing, it has also been held that a contractor may be liable to a third party when in performing the work he was hired to perform, said contractor follows plans which are "so apparently defective, that an ordinary builder of ordinary prudence would be put on notice that the work was dangerous and likely to cause injury" Company, 239 NY 43, 46 (Ryan v the Feeney and Sheehan Building [1929]; Diaz v Vasques, Page 27 of 30 17 AD3d 134, 135 [* 28] [1st Dept 2005] ["plaintiffs failed to show that DOTs plans for the project were so apparently defective that Yonkers was put on notice of the inherent danger"]; Gee v City of New York, 304 AD2d 615, 616 [2d Dept 2003]; Dept 1986]). were so Pioli v Town of Kirkwood, 117 AD2d 954, 955 [3d Such exception imposes liability only if the defects glaring and out of the ordinary that they put the contractor on notice that the work performed by following the plans would cause injury (Ryan at 46) The inquiry is one which focuses upon notice at the time the work was done and as such, that an expert examined the plans post construction and concluded that the plans were faulty is insufficient to impose liability upon the contractor (Ryan at 47 ["The fact that after the accident experts on examining the plans found the supports improper and insufficient was not enough to hold the defendant liable. The defects if any should have been so glaring and out of the ordinary as to bring home to the contractor that it was doing something which would be likely to cause injury."]). contractor, accepted the Evidence that the person who hired the work, and performed inspections in connection therewith, precludes any third-party liability upon the contractor (Gee at 616 ["Slattery demonstrated that the plans and specifications it followed were prepared by engineers of the New York State Department of Transportation (hereinafter the DOT) . The DOT's signed daily inspection reports, along with acceptance letter of the project demonstrated that Page 28 of 30 its final it approved [* 29] Slattery's work. Slattery thereby established its entitlement to judgment as a matter of law."]). Here, Sollazzo upon a review of the deposition testimony provided by and Maldonado, it is clear that the only avenue of liability against Manhattan and G&R is if it is shown that they caused and created the condition alleged. above, and to the extent relevant here, To be sure, a as noted contractor hired to perform work is generally not liable in tort to a non-contracting third-party when he/ she/it breaches causes injury to a third-party a contract and said breach (Stiver at 257; Church at Espinal at 138; H.R. Moch Co. at 164; Bugiada at 369). such contractor will Church at 111), However, liable to a third-party when it causes or creates the condition alleged to have caused injury 140; 111; (Espinal at or when the contract is comprehensive and exclusive as to maintenance, so that the contractor displaces, and in fact assumes the owner or possessor's duty to safely maintain the premises (Church at 112; Espinal at 140; Palka at 589; Bugiada at 369). With regard to the first exception, nonfeasance as opposed to malfeasance, is not tantamount to causing and creating a dangerous condition (Church at 112). On this record, where as per Article 3.2 of the agreement G&R was not delegated the wholesale maintenance of the instant garage, it is clear that HHC or the City retained the lion's share of the Page 29 of 30 [* 30] maintenance responsibility. Thus, Indeed, Sollazzo testified as much. G&R can only be liable if it created the pothole alleged. Based on the record, where Sollazo testified that G&R's function at the garage was that "[t]hey took the money, they monitored who came and went, and they also were responsible for pulling trash," it is clear that they could not have created the pothole alleged. they are entitled to summary judgment. Thus, It is hereby ORDERED that plaintiff's complaint and any cross-claims as against Manhattan and G&R be dismissed with prejudice. It is further ORDERED that Manhattan and G&R serve a copy of this Decision and Order with Notice of Entry upon all parties within thirty (30) days hereof Dated : June 15, 2017 Bronx, New York ~~a-C-£. Ben )?arbato, JSC Page 30 of 30

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