Joseph v Kimco Realty Corp.

[*1] Joseph v Kimco Realty Corp. 2018 NY Slip Op 50675(U) Decided on May 14, 2018 Supreme Court, Queens County Weiss, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 14, 2018
Supreme Court, Queens County

Marie Joseph, Plaintiff,

against

Kimco Realty Corporation, HUNTINGTON PLAZA SHOPPING CENTER, LLC and BDH LANDSCAPING CORP., Defendants.



704439/16
Allan B. Weiss, J.

Upon the foregoing papers it is ordered that these motions are determined as follows.

This is an action to recover for personal injuries plaintiff sustained on February 27, 2015 when she slipped and fell on ice in the parking lot of Huntington Plaza Shopping Center after exiting Best Market. Plaintiff commenced this action against Huntington Plaza Shopping Center, LLC (Huntington), the property owner, Kimco Realty Corporation (Kimco) the property [*2]manager that managed and maintained the parking lot and BDH Landscaping Corp. (BDH) the entity hired to perform snow and ice removal/remediation at the shopping center pursuant to a written contract.

BDH moves for summary judgment dismissing the complaint on the grounds that it owes no duty to plaintiff by virtue of its contract for snow removal; that it was not negligent in the performance of its obligations under the snow removal contract and that it did not create or have actual or constructive notice of the existence of the ice on which plaintiff fell. BDH also moves to dismiss the Huntington and Kimco's cross-claims for contractual and common law indemnification and breach of contract for failure to obtain insurance.

Huntington and Kimco, (hereinafter collectively the defendants) separately move for summary judgment dismissing the complaint on the ground that they entered into a comprehensive and exclusive contract for snow removal with BDH which completely displaced its duty to maintain the parking lot, and, in any event, there is no evidence that defendants had notice of the condition that caused plaintiff's fall. Defendants also move for summary judgment in their favor and against BDH on their cross-claim for contractual and common-law indemnififcation and breach of contract for failure to obtain insurance.

A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). The failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., supra). However, when the movant establishes entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a triable issue fact (see Winegrad v New York Univ. Med. Ctr., supra; Zukerman v City of New York,supra ).

Generally, a contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties as a result of the services unless: (1) in failing to exercise reasonable care in the performance of its duties, the snow removal contractor launched a force or instrument of harm, (2) the plaintiff detrimentally relied upon the continued performance of the snow removal contractor's duties, or (3) the snow removal contract has entirely displaced the property owner's duty to maintain the premises safely (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]; Abbattista v King's Grant Master Assn., Inc., 39 AD3d 439 [2007]; Mitchell v Fiorini Landscape, 284 AD2d 313 [2001]).

Here, the only Espinal exception which may apply based upon the factual allegations in the plaintiff's pleadings is that the defendant, BDH launched a force or instrument of harm by its snow removal activities. The launch of a force or instrument of harm has been interpreted as requiring that the contractor create or exacerbate the dangerous condition (see Fung v Japan Airlines Co., Ltd., 9 NY3d 351, 361 [2007]; Church v Callanan Indus., 99 NY2d 104, 111 [2002]; Espinal v Melville Snow Contrs., 98 NY2d at 142).

In support of its motion, BDH submitted, inter alia, a copy of the snow removal contract, [*3]the deposition testimonies of Brian Schretzmayer, the owner of BDH, John Hronec, the manager of Best Market, the accident report Mr. Hronec prepared and a photograph he took of the ice upon which plaintiff allegedly fell after the plaintiff was removed from the scene by ambulance.

Mr Hronec testified that when he came to work on February 27, 2015 he had to walk around large chunks of ice about 4' X 6', 3' X 5' and 1" to 2" thick located sporadically throughout the parking lot. He testified that an employee of Best Market told him a lady fell in the parking lot and he went out to see if he could help. He found plaintiff on the ground on a large piece of ice about 4' wide and 6' to 8' long and 1" to 2" high which basically took up almost the whole spot. After plaintiff was removed by ambulance, he took a picture of the ice.

The snow and ice removal contract provides in pertinent part as follows. The contractor, BDH, will perform and manage all aspects of snow removal, salting and sanding in all parts of the shopping center including the parking lot and that it is the contractors sole responsibility to gauge the timing of services and staffing level to ensure all obligations are met. Snow removal shall commence at the onset of accumultaing snow, drifting or ice conditions and must be substantially completed by 7:00 a.m. It is required that the contractor perform post-storm inspection of their work to ensure that all paved and concrete areas are clear of snow and ice and that adequate salt has been used to address icing concerns. If post storm inspection reveals snow/ice on lot, contractor will immediately return to complete work. The property manager has the right but not the obligation to require additional services including icemelt treatment, plowing or shoveling when and if conditions warrant.

Mr. Schretzmayer testified that he monitors weather conditions to determine if their services would be required. He testified that according to his records, the last snowfall before the plaintiff's fall was on February 21, 2015, six days before plaintiff's fall, when 3.5" of snow fell. He also testified that depending on weather conditions, the condition of the parking lot after snow removal would be blacktop. However, sometimes when the temperatures were below freezing and the snow event was during the day, cars would drive over the snow before snow removal can be performed. As a result, the snow could become compacted and freeze overnight making removal even more difficult. In addition he testified that sometimes, the snow/ice would be difficult to access because of parked cars. He also testified that he doesn't have a specific recollection of the condition of the parking lot in February of 2015 or whether any followup inspection or remediation was performed and he did not keep any records of his snow removal activities.

BDH has failed to establish, prima facie, its entitlement to summary judgment by demonstrating that it did not launch of a force or instrument of harm by its snow removal activities. The deposition testimony of Mr. Schretzmayer failed to establish that the ice was not present when it last cleaned or inspected the area, thus, failed to eliminate all issues of fact, including, whether the ice upon which plaintiff fell was caused by BDH's inadequate snow removal efforts thereby [*4]launching an instrument of harm and as to constreuctive notice (see Dhu v New York City Hous. Auth., 119 AD3d 728, 729 [2014]; Taylor v Rochdale Vil., Inc., 60 AD3d 930, 931 [2009]).

Accordingly, BDH's motion for summary judgment dismissing the complaint is denied.

The defendants', Huntington and Kimco's, motion for summmary judgment dismissing the complaint is denied.

Contrary to defendants' claim the snow removal contract is not an exclusive and comprehensive maintenance agreement which entirely displaced the property owner's duty to maintain the premises in a reasonably safe condition (see Rudloff v Woodland Pond Condominium Ass'n, 109 AD3d 810 [2013]; Roach v AVR Realty Co., LLC, 41 AD3d 821 [2007]). In this regard, Huntington and Kimko, in their joint answer at paragraph 6, admitted that Kimco "managed and maintained the parking lot" of the premises where plaintiff fell.

Moreover, Huntington, as the owner of Huntington Plaza Shopping Center had a nondelegable duty "to provide members of the general public with a reasonably safe premises, including a safe means of ingress and egress" (Etminan v Esposito, 126 AD3d 854, 855 [2015] quoting Arabian v Benenson, 284 AD2d 422, 422 [2001], quoting Thomassen v J & K Diner, 152 AD2d 421, 424 [1989]). To be entitled to summary judgment Huntington has the burden to establish, prima facie, that it maintained its premises in a reasonably safe condition and that it did not create or have notice of an icy condition condition that posed a foreseeable risk of injury to persons expected to be on the premises (see Etminan v Esposito, supra; Cassone v State of New York, 85 AD3d 837, 838 [2011]; Luksch v Blum-Rohl Fishing Corp., 3 AD3d 475, 476 [2004]). To provide constructive notice, "a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). A defendant moving for summary judgment based upon lack of notice has the initial burden to make a prima facie showing affirmatively establishing the absence of notice as a matter of law (see Fernandez v Festival Fun Parks, LLC, 122 AD3d 794,794 [2014]; Dhu v New York City Hous. Auth., supra) by offering some evidence as to when the area in question was last cleaned or inspected prior to the plaintiff's fall (see Dhu v New York City Hous. Auth., supra; Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 598-599 [2008]). "A movant cannot satisfy its initial burden merely by pointing to gaps in the plaintiff's case"(Campbell v New York City Tr. Auth., 109 AD3d 455, 456 [2013]). Huntington failed to demonstrate, prima facie, lack of constructive notice.

The snow removal contract provides that the Property Manager, had the right, but not the obligation to require additional services including the application of ice melt, plowing and shovelling, if conditions warrant or it determines that the contractor has not done an adequate job. To establish that it had no actual or constructive notice of the allegedly dangerous icy condition, Huntington relied in part upon the deposition of Mr. Essopos, the Property Manager, who testified that he visited the shopping center only quarterly or when there were complaints. The evidence (Exh.M) submitted by Huntington indicates that Mr. Essopos responded to snow issues primarily, when summonses were issued. There is no evidence as to when, prior to the plaintiff's accident, he or anyone on Huntington's behalf last inspected the parking lot prior to plaintiff's fall.

The branch of the defendants', Huntington and Kimko's motion for summary judgment on its cross-claims for contractual and common law indemnification and breach of contract and the branch of defendant, BDH's motion for summary judgment dismissing the cross-claims are denied.

"The party seeking contractual indemnification must establish that it was free from negligence and that it may be held liable solely by virtue of statutory or vicarious liability" (Jardin v A Very Special Place, Inc., 138 AD3d 927, 931 [2016] quoting Arriola v City of New York, 128 AD3d 747, 749 [2015]) because to the extent its negligence contributed to the accident, it cannot be indemnified therefor" (Cava Constr. Co., Inc. v Gealtec Remodeling Corp., 58 AD3d 660, 662 [2009]).

Although the subject contract provides for contractual indemnification, defendants are not entitled to summary judgment on their cross-claim for common-law or contractual indemnification from BDH because they failed to establish, prima facie, that they were not negligent (see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

In view of the issues of fact raised by the motions as to whether the defendants BDH, Huntington and Kimco were negligent and the relative negligence, if any, of each, BDH's motion to dismiss the cross-claims for contaractual and common law indemnification is also denied.

Turning now to the motions regarding the cross-claims based on the failure to obtain insurance, the appplicable provision of the "Purchase Order for Contractors" appearing on p.2 provides that "KIMCO REALTY CORPORATION AND ITS OFFICERS, DIRECTORS AS WELL AS ALL RELATED SUBSIDIARIES, ENTITIES AND CORPORATIONS SHALL BE NAMED AS ADDITIONAL INSUREDS AS WELL AS CERTIFICATE HOLDERS." Exhibit A entitled, Minimum Insurance Requirements specifying the amounts and type of insurance required at parag. 5 Property Insurance provides, inter alia, that "Insurance specified in items 2, 3 and 4 shall name Kimco Realty Corporation and its officers, directors as well as all related subsidiaries, entities and corporations shall be named as additional insureds as well as certificate holders." Item 2 is General Liability Coverage. There is no evidence presented to demonstrate that Huntington falls within the entities described as Kimco's "related subsidiaries, entities and corporations".

Although Exhibit C the "Hold Harmless Agreement" provides that contractor shall indemnify and hold harmless, inter alia, the owner from all liabilities etc. , and that the contratctor "... will obtain insurance to cover its liability hereunder..." this provision does not require that such insurance name the owner as an "additional insured".

Since the defendants have failed to demonstrate, prima facie, an express provision in the contract requiring that Huntington be made an additional insured, the branch of defendants' motion for summary judgment in their favor on their cross-claim for failure to obtain insurance naming Huntington as an additional insured is denied.

However, BDH has submitted a copy of the insurance contract in which Kimco Realty Corporation and its officers, directors as well as all related subsidiaries, entities and corporations have been named as additional insureds in compliance with its contractual obligation. In opposition, the defendants have fialed to raise an issue of fact.

Accordingly the branch of defendants' motion for summary judgment in their favor on the cross-claim for failure to obtain insurance naming Kimco an additional insured is denied and BDH's motion for summary judgment dismissing the cross-claim for failure to obtain insurance naming Kimco an additional insured is granted.

In summary, the defendants', Huntington and Kimco's motion (Motion Seq.#2) for summary judgment is denied.

Defendant, BDH's motion (Motion Seq.#1) is granted only to the extent that the cross-claim for summary judgment dismissing the co-defendant's Kimko's cross-claim for failure to obtain insurance is granted. In all other respects BDH's motion is denied.

Dated: May 14, 2018
J.S.C.