Rizzo v Sorbaro Co.

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Rizzo v Sorbaro Co. 2018 NY Slip Op 34111(U) October 3, 2018 Supreme Court, Dutchess County Docket Number: Index No. 2017-50718 Judge: James V. Brands Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] DUTCHESS COUNTY CLERK 10/04/2018 09:07 AM NYSCEF DOC. NO. 83 INDEX NO. 2017-50718 RECEIVED NYSCEF: 10/03/2018 SUPREME COURTCOURT- STATE STATE OF NEW NEW YORK YORK SUPREME DUTCHESS COUNTY COUNTY DUTCHESS Present: Present: JAMES V. BRANDS BRANDS Hon. JAMES Justice. Justice. SUPREME SUPREME COURT: COURT: DUTCHESS DUTCHESS COUNTY COUNTY _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x FRANK V. RIZZO, RIZZO, FRANK Plaintiff, Plaintiff, DECISION AND AND ORDER ORDER DECISION TWO MOTIONS MOTIONS ON TWO Index No.: 2017-50718 2017-50718 Index -against-against- SORBARO CO., LOVE LOVE MANAGEMENT MANAGEMENT CORP., CORP., SORBARO LEHIGH LAWNS LAWNS AND AND LANDSCAPING, LANDSCAPING, INC., and LEHIGH Defendants. Defendants. _____________________ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x papers were were read and considered considered on the two separate separate motions motions for summary summary The following following papers judgment defendants. judgment motion motion filed by the defendants. NYSCEF Docs. 23-82 23-82 YSCEF Docs. This action action arises arises out of ofaa slip and fall incident incident that that occuned occurred on 2/16/2016 2/16/2016 at 7:00 am This during the course course of plaintiffs employment employment as a delivery delivery specialist specialist for Papa Papa John's John's pizza pizza during of plaintiffs franchise. He is charged charged with with making making food deliveries deliveries to several several franchise franchise sites within within a certain certain franchise. Plaintiff sustained sustained injuries injuries due to a slip and fall on snow snow and ice in the parking parking lot in region. Plaintiff of the Papa Papa John's John's site located located at the West West Side Plaza Plaza in Poughkeepsie, Poughkeepsie, New New York. The site front of owned by Sorbaro Sorbaro Co. which which had a snow snow removal removal contract contract with with Lehigh Lehigh Lawns Lawns and is owned Landscaping, Inc. Inc. ("Leigh ("Leigh Lawn"). Lawn"). Landscaping, According to plaintiff, plaintiff, he was in route from Albany Albany on the date date of of the incident, incident, which which he According being "very "very cold cold and snow snow on the roads". roads". He anived arrived at the Poughkeepsie Poughkeepsie site at recalls as being 6:50a.m. and observed of ice" in the parking parking lot. Counsel Counsel states states that that Rizzo Rizzo had salt in his 6:50a.m. observed a "sheet 'sheet of truck to spread spread on the ground during his delivery delivery route. Rizzo Rizzo held held onto onto his tractor tractor trailer trailer to walk ground during truck approximately 8 feet alongside alongside his trailer trailer to retrieve retrieve the salt and shovel, shovel, he removed removed the latch latch to approximately retrieve same, same, he took open the door, at which which time time he slipped slipped on the icy parking parking retrieve took a step back back to open lot pavement. pavement. (See Rizzo Rizzo EBT). EBT). I' Defendants now separately separately move move for summary summary judgment. Defendants judgment. Leigh Lawn Lawn's's Motion Leigh Motion Lawn contends contends that plaintiff, a non-contracting non-contracting party, party, since Leigh Lawn that it did not owe a duty to plaintiff, matter does three exceptions exceptions set fo1th forth in Espinal Espinal v Melville Melville Snow Snow Contrs. Contrs., this matter does not fall within within the three 1 1 of 5 [*FILED: 2] DUTCHESS COUNTY CLERK 10/04/2018 09:07 AM NYSCEF DOC. NO. 83 INDEX NO. 2017-50718 RECEIVED NYSCEF: 10/03/2018 N.Y.2d 136, 140 [2002]. [2002]. Specifically Specifically, Leigh Leigh Lawn Lawn contends contends it did not fail to exercise exercise 98 N.Y.2d reasonable care in performance performance of of its duties duties under under the snow removal contract contract with Sorbaro; Sorbaro; it did snow removal reasonable not launch launch a force or instrument instrument of of harm; harm; it did not entirely entirely displace displace plaintiffs plaintiffs snow snow removal removal obligation; nor did plaintiff plaintiff detrimentally Leigh Lawn's Lawn's continued continued performance performance of of its obligation; detrimentally rely on Leigh duties. (Espinal duties. (Espinal v. v. Melville Melville Snow Snow Contrs, supra. supra. at 140). There There is no evidence evidence that that Leigh Leigh Lawn left the premises plowed the parking premises in a more more dangerous dangerous condition condition after having having plowed parking lot the prior prior evening. evening. Counsel Counsel contends contends that that the snow snow removal removal contract contract executed executed by Sorbaro Sorbaro and Leigh Lawn comprehensive and did not displace displace property property owner owner Sorbaro Sorbaro from its duty to maintain maintain a was not comprehensive reasonably safe premise. premise. Leigh Leigh Lawn Lawn was not informed informed that plaintiff plaintiff was making making an early reasonably morning delivery, delivery, thus Leigh Leigh Lawn Lawn reported reported at 8:20a.m. 8:20a.m. as usual usual to perform perform its contractual contractual morning duties to salt the area duties area in preparation preparation for the store to open open at 9:00a.m. 9:00a.m. Based on the foregoing, foregoing, Leigh Leigh Lawn Lawn also requests requests dismissal dismissal of of Sorbaro's Sorbaro's cross-claim cross-claim for Based indemnification there is no evidence Leigh Lawn Lawn owed owed a duty duty of of reasonable reasonable care to indemnification since since there evidence that Leigh plaintiff or a duty independent independent of contractual duty with with Sorbaro Sorbaro (citing (citing Foster Foster v. v. Herbert Herbert of its contractual plaintiff Sleepoy Corp.,, 76 AD3d AD3d 210 [2nd Dept. 2010]). 2010]). Sleepoy Corp. Sorbaro's's Cross-Motion Cross-Motion against against Leigh Leigh Lawns Lawns Sorbaro Sorbaro that it is entitled entitled to common common law contribution contribution and indemnification indemnification from Sorbaro claims claims that Lawn since since Sorbaro Sorbaro had a comprehensive comprehensive snow snow removal removal agreement agreement with with Leigh Lawn Leigh Lawn whereby Leigh Leigh Lawn Lawn had the exclusive exclusive duty to inspect inspect and initiate initiate any necessary necessary snow/salt snow/salt whereby efforts at the premises. premises. Counsel Counsel cites cites certain certain provisions provisions of of the snow snow removal removal agreement agreement whereby whereby efforts counsel contends that Leigh Leigh Lawn Lawn was charged charged with with the exclusive exclusive duty duty of of "snowplowing, "snowplowing, precounsel contends storm service and 'straight 'straight salting' salting' during during an ongoing ongoing event, event, and afterwards afterwards as well." well." storm salt service (LaRose ~6). Counsel Counsel states states that that the snow snow removal removal contract contract does not charge charge Sorbaro Sorbaro with (LaRose Aff. 16). any duty to contact contact Leigh Leigh Lawn Lawn to begin begin any snow snow removal removal related related work. Counsel cites the deposition deposition testimony testimony of of Alan Alan Leigh, Leigh, the Chief Chief Executive Executive Officer Officer of of Counsel testified that that on the night night before before the incident, incident, Leigh Leigh Lawn Lawn performed performed preLeigh Lawn. Leigh testified salting at 10:lla.m.-10:23a.m. 10: a.m.-I 0:23a.m. Leigh Lawn Lawn later performed performed plowing plowing at 10:00p.m.10:00p.m.storm salting performed further further salting salting on the following following day at 8:20a.m. 8:20a.m. (after (after the incident). incident). :OOp.m.; and performed 11 :00p.m.; records indicate that the night night before before the incident, incident, Alan Alan Leigh Leigh inspected inspected the premises premises The records indicate that sometime sometime between between midnight midnight at 3:16a.m. 3: 16a.m. (EBT (EBT p. 51). Counsel Counsel contends contends that that the foregoing foregoing facts coupled of snow coupled with with the weather weather conditions conditions of snow turning turning to freezing freezing rain and sleet sleet overnight overnight demonstrates that Leigh Leigh Lawn Lawn had the exclusive exclusive duty to inspect inspect the premises, premises, assess assess the weather weather demonstrates conditions, and perform perform any snow/salt snow/salt efforts efforts required required based weather conditions conditions leading leading conditions, based on the weather up to the incident. incident. Also cited cited is the testimony testimony of of Thomas Thomas Heaslip Heaslip of Sorbaro indicating indicating that that Sorbaro Sorbaro was not of Sorbaro notified notified of of any expected expected morning morning delivery delivery at Papa Papa John John'ss on the date date of of the incident. incident. He further never performed performed any site inspections inspections for weather weather issues issues in the past past and never states that Sorbaro Sorbaro never gave any instructions instructions to Leigh Leigh Lawn Lawn with with respect respect to its snow/salt snow/salt efforts. efforts. It lt is based based on the foregoing that Sorbaro Sorbaro asserts asserts entitlement contribution and indemnification indemnification from Leigh Leigh foregoing entitlement to contribution Lawns. 2 2 of 5 [*FILED: 3] DUTCHESS COUNTY CLERK 10/04/2018 09:07 AM NYSCEF DOC. NO. 83 INDEX NO. 2017-50718 RECEIVED NYSCEF: 10/03/2018 Sorbaro's's Cross-Motion Cross-Motion against Plaintiff Sorbaro against Plaintiff Sorbaro cross-moves for summary judgment against Sorbaro cross-moves summary judgment against plaintiff plaintiff based based upon upon two main main arguments. adopts the arguments arguments. First First, counsel counsel adopts arguments set forth by Leigh Leigh Lawn Lawn to the extent extent that Sorbaro, by and through through its contractor contractor Leigh Lawn, did not launch launch a force force or instrument instrument of of haim; harm; Sorbaro, did not leave the premises premises in a more more dangerous dangerous condition condition after after having having plowed plowed the parking parking lot the prior evening; did not entirely prior evening; entirely displace displace plaintiff's plaintiffs snow snow removal removal obligation; obligation; nor did plaintiff plaintiff detrimentally Leigh Lawn' Lawn'ss continued continued performance performance of of its duties. duties. (Espinal (Espinal v. Melville Melville detrimentally rely on Leigh Snow Contrs, supra. at 140). Secondly, Secondly, counsel counsel contends contends that that the weather weather conditions Snow Contrs, supra. conditions data demonstrates there was storm in progress progress which which began began as snow snow and turned turned into sleet sleet and demonstrates that there was a storm freezing rain causing causing icy conditions conditions to form overnight. overnight. Sorbaro, Sorbaro, by and through through its contractor contractor freezing Lawn, is entitled entitled to a reasonable period of of time time following following the storm storm to remedy remedy any Leigh Lawn, reasonable period hazardous conditions conditions caused caused by the storm, storm, which which in fact occurred occurred prior prior to that that plaza' plaza'ss regular regular hazardous business hours (see LaRose LaRose Aff. 112). ~12). business hours Plaintiff's Opposition Opposition Plaintiff's Plaintiff contends that defendants defendants failed to meet meet the initial initial burden burden of of demonstrating demonstrating Plaintiff contends that entitlement to summary summary judgment. Furthermore, even even if the defendants defendants met their their initial initial burden, burden, judgment. Fmthermore, entitlement plaintiff plaintiff argues argues that that there there are issues issues of of fact related related to: (i) whether whether Leigh Leigh Lawn was responsible responsible for worsening worsening the conditions plowing 8 hours hours prior prior to the incident incident without without spreading spreading conditions by plowing sand/salt; and (ii) whether whether Sorbaro Sorbaro created created or exacerbated exacerbated the dangerous dangerous condition sand/salt; condition or (iii) whether Sorbaro knew knew or should should have have known known of of the dangerous dangerous condition condition and failed to take whether Sorbai·o reasonable measures measures to remedy remedy the dangerous dangerous condition condition prior prior to the incident. incident. reasonable following facts are asserted asserted by plaintiff. plaintiff. Rizzo Rizzo testified testified that that there there was no snow snow fall at The following drove into Poughkeepsie Poughkeepsie on the morning morning of of the incident. incident. There There was no snow snow or ice the time he drove vicinity of of the plaza plaza or in an adjacent adjacent parking parking lot not owned owned by on the roadways roadways in the near vicinity Sorbaro. There was no evidence of sand or salt having been applied to the icy portions of the having been applied portions of Sorbaro. There evidence of parking lot of morning of of the incident. incident. Rizzo Rizzo had been been to the plaza plaza about about 150 of the plaza plaza on the morning parking past to make make morning morning deliveries, deliveries, all of of which which were were made of the Papa made at the front of times in the past John'ss store between 6:00a.m. and 10:00a.m. 10:00a.m. (Rizzo Aff. ~4, ,is ~5,, i[6). ~6). John' between 6:00a.m. (Rizzo Aff.14, relates to Leigh Leigh Lawn, Lawn, plaintiff plaintiff contends contends that that Leigh Leigh Lawn Lawn created created or exacerbated exacerbated As it relates parking lot condition condition by having having plowed plowed the parking parking lot between 10:03p.m.-11:00p.m. of the the parking between 10:03p.m.-11:00p.m. prior evening evening, clearing clearing the snow snow mix mix without without having having treated treated the area area with with salt thereby thereby allowing allowing prior an untreated untreated layer of of sleet sleet and freezing freezing rain to form a sheet sheet of of ice. Same Same was left untreated untreated for up to 8 hours. Notably, Rizzo stated stated that that the adjacent adjacent parking parking lot was plowed plowed yet did not have the otably, Rizzo same icy condition. condition. Also Also cited cited is the weather weather data data and affidavit affidavit of of meteorologist meteorologist Kathryn Kathryn san1e Whittaker in support support of contention that Lawn'ss treatment treatment of of the parking parking lot created created or of the contention that Leigh Lawn' Whittaker exacerbated the icy condition. condition. exacerbated As it relates relates to Sorbaro, Sorbaro, plaintiff plaintiff contends contends that Sorbaro Sorbaro is liable liable for Leigh Leigh Lawn' Lawn'ss creation of of the dangerous dangerous condition. plaintiff contends contends that that Sorbaro Sorbaro had actual actual creation condition. In the alternative, alternative, plaintiff 3 3 of 5 [*FILED: 4] DUTCHESS COUNTY CLERK 10/04/2018 09:07 AM NYSCEF DOC. NO. 83 INDEX NO. 2017-50718 RECEIVED NYSCEF: 10/03/2018 notice of of the dangerous dangerous condition condition of of its parking parking lot and failed failed to take reasonable reasonable constructive notice or constructive measures to alleviate alleviate the condition condition prior prior to plaintiffs plaintiffs fall. Counsel Counsel cites conflicting conflicting measures meteorological data data to challenge challenge Sorbaro' Sorbaro's s reliance reliance on the ''storm progress' theory. theory. Plaintiff's Plaintiffs meteorological storm in progress' meteorologist states states that that the initial initial storm ceased ceased well over 4 hours hours prior prior to the incident, incident, there there meteorologist being of an inch inch precipitation precipitation of of rain freezing freezing upon upon contact 6:05a.m.-6:10a.m. being only 1/100" of contact at 6:05a.m. -6: 1Oa.m. (See Rubin Rubin Aff. pg. 7-8 citing citing Vosper v Fives Fives 160th Street, Street, LLC, LLe, 110 A.D.3d A.D.3d 544 [1st Dept. Powell v MLG Hillside L.P., 290 A.D.2d A.D.2d 345 [1st Dept. Dept. 2002]). 2002]). The MLG Hill ide Associates, Associates, L.P., 2013] ; Powell meteorologist further further states states that that it did not rain until until after the incident. incident. Counsel Counsel contends contends that the meteorologist condition upon upon which plaintiff fell was the san1e same condition condition that that existed existed when when Mr. Leigh Leigh icy condition which plaintiff inspected premises at 3:12a.m. 3: 12a.m. and thus defendants defendants knew knew or should should have have known known of of _ the inspected the premises the dangerous that since Sorbaro Sorbaro relied relied on the judgment of its agent agent Leigh dangerous condition. condition. It is alleged alleged that judgment of Lawn, then the knowledge knowledge of of Mr. Leigh Leigh o/b/o olblo Leigh Leigh Lawn Lawn can can be imputed imputed onto Sorbaro. Sorbaro. (See id. id. Lawn, at pg. pg. 9). 9). Fw-ther, Further, Sorbaro Sorbaro should should have have known known about about plaintiffs plaintiffs early early morning morning deliveries deliveries which which making for the past past 2 years. years. he had been making Upon due considerations considerations of motion papers, papers, it is hereby hereby of the motion Upon ORDERED that that defendants' defendants' motions summary judgment denied. The record record ORDERED motions for summary judgment are denied. raises of fact to be resolved resolved by a trier of of fact, fact, including including the conflicting conflicting meteorological meteorological data data rai ses issues issues of whether there was a 'storm 'storm in progress' progress' at the time of incident, whether whether Leigh Leigh Lawn' Lawn'ss as to whether there was of the incident of plowing plowing the parking parking lot but electing electing not salt on the prior prior snow removal removal efforts efforts of not to apply apply salt evening created created or exacerbated condition creating creating a sheet sheet of of ice left untreated untreated the following following evening exacerbated the condition morning, whether whether Leigh Leigh Lawn Lawn had an exclusive exclusive duty to perform perform snow snow removal removal related related work, work, morning, whether Sorbaro Sorbaro had actual actual or constructive constructive notice notice of of the dangerous dangerous condition condition yet failed to take whether appropriate measures measures to remedy remedy same same prior prior to plaintiff's plaintiffs fall, fall, and whether whether Leigh Leigh Lawns any appropriate breached any contractual duty owed to Sorbaro by failing to perform the services which breached contractual duty owed Sorbaro failing perform services for which Sorbaro retained it so as to warrant warrant indemnification. indemnification. It is further further orbaro retained ORDERED that that counsel counsel are directed directed to appear appear for a pre-trial pre-trial conference conference on October October 31, ORDERED ISa.m. Counsel Counsel are reminded reminded that jury selection is scheduled scheduled for January January 22, 2019 at 2018 at 9: lSa.m. jury selection 9:30a.m. 9:30a.m. relief not specifically specifically granted granted herein herein is denied. denied. Any relief The foregoing constitutes constitutes the decision decision and order order of of this com1. court. The foregoing 0 , ENTERED: ENTERED: Dated: October October.3 , 2018 2018 Dated: Poughkeepsie, New New York York Poughkeepsie, HON.J 4 4 of 5 V. BRANDS, J.S.C. [*FILED: 5] DUTCHESS COUNTY CLERK 10/04/2018 09:07 AM NYSCEF DOC. NO. 83 INDEX NO. 2017-50718 RECEIVED NYSCEF: 10/03/2018 Steven H. Cohen, Steven Cohen, Esq. Regenbaum, LLP Feldman, Kleidman, Coffey, Sappe Sappe & Regenbaum, Feldman, Kleidman, Coffey, AttorneysjiJr Plaintiff Attorneys for P laintijf Main Street, Street, P.O. P.O. Box Box A 995 Main Fishkill, NY Fishkill, Y 12524 Stephen J. Levy, Esq. Stephen Henderson, LLP Rawle & Henderson, Attorneysfor Defendant Attorneys for Defendant Leigh Lawns Lawns and Landscaping, Inc. and Landscaping, Leigh Street, 27thth Floor Floor 14 Wall Street, York, NY 10005 New New Keith Larose. Esq. Larose, Esqs. Larose & Larose, Larose Attorneysfor Defendant Attorneys for Defendant Sorbaro Co. Sorbaro Haight A Avenue 510 Haight venue Poughkeepsie, NY Poughkeepsie, Y 12603 Management Corp. Corp. (Non-appearing (Non-appearing Defendant) Love Management Defendant) Pursuant to CPLR CPLR Section appeal as of of right right must must be taken taken within within thirty thirty days after Pursuant Section 55513, 513, an appeal service by a party upon the appellant of a copy of the judgment or order appealed appellant of of judgment order appealed from and service party upon written notice notice of of its entry, entry, except except that that when when the appellant appellant has served served a copy copy of of the judgment judgment or written order notice of of entry, entry, the appeal appeal must must be taken taken within within thirty thirty days thereof. order and written written notice thereof. submitting motion motion papers papers to Judge .Judge Brands' Brands' Chambers, Chambers, please please do not not submit submit any any When submitting When copies. Submit Submit only the the original original papers. papers. copies. 5 5 of 5

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