Burkes v Hines Reit Three Huntington Quadrangle LLC
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Burkes v Hines Reit Three Huntington Quadrangle LLC 2019 NY Slip Op 33660(U) November 14, 2019 Supreme Court, Suffolk County Docket Number: 16-4286 Judge: Joseph C. Pastoressa 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. [* 1] SHORT FORM ORDER INDEX No. 16-4286 CAL. No. 18-021130T SUPREME COURT - STATE OF NEW YORK I.A.S. PART 34 - SUFFOLK COUNTY PRES ENT: Hon. JOSEPH C. PASTORESSA Justice of the Supreme Court MOTION DATE 2-13-19 (001) MOTION DATE 3-13-19 (002) ADJ. DATE 4-24-19 Mot. Seq.# 001 - MD # 002 - MotD ---------------------------------------------------------------)( BARBARA BURKES, Plaintiff, TINARI, O'CONNELL & OSBORN, LLP Attorney for Plaintiff 320 Carleton A venue, Suite 6800 Central Islip, New York 11 722 WILSON, ELSNER, MOSKOWITZ, EDELMAN & DICKER, LLP Attorney for Defendants Hines Reit Three Huntington Quadrangle LLC and Innovative Designs & Maintenance, LLC 1133 Westchester Avenue White Plains, New York 10604 - against - HINES REIT THREE HUNTINGTON QUADRANGLE LLC, INNOVATIVE DESIGNS & MAINTENANCE, LLC, and MACNAJL-IT, INC. , Defendants. ---------------------------------------------------------------)( INNOVATIVE DESIGNS & MAINTENANCE, LLC, Third-Party Plaintiff, - against - MAC-NAIL-IT, INC., Third-Party Defendant. ---------------------------------------------------------------)( MAZZARA & SMALL. P.C. Attorney for Defendant 1698 Roosevelt A venue Bohemia, New York 11716 [* 2] Burkes v Hines REIT Three Index No. 16-4286 Page 2 Upon the following papers numbered I to 75 read on these motions for summary judgment: Notice of Motion and supporting papers I - 19ยท 38 - 55; Answering Affidavits and supporting papers 20 - 31; 32 - 33; 56 - 57; 58 - 69; Replying Affidavits and supporting papers 34 - 35; 36 - 37; 70 - 72; 73 - 75; (a1'd afie1 hea1 i11g eot111sel i11 ~t1ppo1t a11d opposed to the motttm) it is, ORDERED that the motion by defendants Hines REIT Three Huntington Quadrangle LLC and Innovative Designs & Maintenance, LLC, for summary judgment dismissing the complaint, the cross claims, and the counterclaims against them is denied; and it is further ORDERED that the motion by defendant/third-party defendant Mac-Nail-It, Inc., for summary judgment dismissing the complaint, the third-party complaint, and the cross claims against it is granted to the extent provided herein, and is otherwise denied. This action was commenced by plaintiff Barbara Burkes to recover damages for personal injuries she allegedly sustained on February 14, 2014, when she slipped and fell on ice in a parking lot located at 3 Huntington Quadrangle, Melville, New York. It is undisputed that defendant Hines REIT Three Huntington Quadrangle LLC (Hines) owned the subject premises, that Hines contracted with defendant/third-party plaintiff Innovative Designs & Maintenance, LLC (Innovative) to provide property management services at the subject premises, and that Innovative contracted with defendant/third-party defendant Mac-Nail-It, Inc. (Mac) to provide snow plowing services for the subject parking lot. Hines asserts a cross claim against Innovative for indemnification. Innovative asserts cross claims against Hines for contribution, contractual indemnification, and breach of contract, as well a third-party claim against Mac for contribution, common law indemnification, contractual indemnification, and breach of contract. Mac then asserted a cross claim against Hines for contribution, and a counterclaim against Innovative for contribution. Plaintiff also served an amended complaint asserting a direct claim against Mac. Hines and Innovative now move for summary judgment in their favor, arguing that they did not owe plaintiff a duty at the time of her alleged fall because there was a storm in progress or, in the alternative, that they did not have notice of the alleged dangerous condition. In support of their motion, Hines and Innovative submit, among other things, transcripts of the parties' deposition testimony, copies of invoices, and certified meteorological records. Mac also moves for summary judgment in its favor, arguing that it owed no duty of care to plaintiff, that it does not fall within one of the exceptions to Espinal v Melville Snow Contrs. , 98 NY2d 136, and that, following its completion of its plowing/salting/sanding work, it had no duty to monitor the subject parking lot for ice formation. In support of its motion, Mac submits, among other things, a copy of a "building services contract" between Hines and Innovative, a copy of a "proposal/agreement" between Mac and Innovative, copies of invoices, and handwritten notes. Plaintiff testified that she arrived at the subject premises at approximately 8:25 a.m. on the date in question, and that it was "a clear day, cold." She stated that she parked her motor vehicle in the subject parking lot, observed snow on the "side grassy areas," and walked into the nearby office building to commence her workday. Plaintiff indicated that she did not go outside again until approximately 5:45 [* 3] Burkes v Hines REIT Three Index No. 16-4286 Page 3 p.m., when leaving for the day. She stated that she exited the building using the same route she used to enter it that morning, walking down a concrete sidewalk toward the subject parking lot. Plaintiff testified that as she stepped off of the concrete walkway onto the parking lot surface, her foot slipped and she fell to the ground. She stated that while on the ground, she looked around and discovered that she was lying on "a sheet of ice" at least two feet by two feet in size. Upon questioning, plaintiff denied ever having seen the ice in question prior to slipping on it. Kimberly Melendez testified that she is employed as the comptroller of Commercial Building Maintenance, an owner oflnnovative. She stated that on July 1, 2011, Innovative entered into a threeyear contract with Hines to provide snow removal services for the subject parking lot. Ms. Melendez indicated that such contract provided for snow plowing and the spreading of a salt/sand mixture, but that Innovative's duties did not extend to the sidewalks adjacent to the parking lot. She explained, however, that in the event of a large snowfall, Ron Craddock, the "property manager" for Hines, would request that Innovative send laborers to work under his supervision in clearing the subject premises' sidewalks. Ms. Melendez testified that such instances would be memorialized in work orders and invoices. Her attention directed to certain invoices from February 2014, she indicated that employees oflnnovative's subcontractor, Mac, were present at the subject premises on February 13, 2014, clearing 11 inches of snow, and on February 14, 2014, clearing 3.2 inches of snow. John McNeill testified that he is the sole shareholder of Mac, and that Mac was hired by Innovative to provide snow plowing services at the subject parking lot. He indicated that Mac would begin its work automatically, upon snowfall of one inch or more. He further stated that after the snow was plowed to the outer perimeter of the parking lot, "away from the building," a salt/sand mixture would "always" be applied to the parking lot. Mac would then send an invoice to Innovative with pricing based upon the amount of snowfall reported by the National Weather Service. Upon questioning, Mr. McNeill averred that he and his wife kept a "snow log" in which they recorded weather conditions chronologically during snow storms. He indicated that entries in the snow log would be derived from both weather reports and his personal observations. Mr. McNeil! testified the entries in the snow log indicate that snow began falling at 1:00 a.m. on February 13, 2014, and continued until approximately 1:00 p.m., when it changed to rain and hail; the rain and hail continued until 9:00 p.m., at which time it changed to all rain. Mr. McNeill testified that the snow log entry for 2:41 a.m. on February 14, 2014, reflects that it was snowing at such time, and that Mac "plowed and sanded" 13.5 inches of snow on that date. Upon being shown a Mac invoice billing for work it did at the subject parking lot on February 13, 2014 and February 15, 2014, he stated that 13 inches of snow were plowed on the 13th, 3 .1 inches were plowed on the 15 111, and there is "nothing documented" as to February 14, 2014. A "real property owner, or a party in possession or control of real prope11y, will be held liable for injuries sustained in a slip-and-fall accident involving snow and ice on its property only when it created the alleged dangerous condition or had actual or constructive notice of it" (Somekh v Valley Natl. Bank, 151 AD3d 783, 784, quoting Rudloff v Woodland Pond Condominium Assn., 109 A03d 810, 812). Thus, to establish its entitlement to summary judgment, "a property owner or party in possession must establish, prima facie, that it neither created nor had actual or constructive notice of the dangerous condition that allegedly caused the plaintiff to fall" (id. (internal quotation marks omitted]). [* 4] Burkes v Hines REIT Three Index No. 16-4286 Page 4 As a general rule, "a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties" (R udloffv Woodland Pond Co11domilliumAssn. , 109 AD3d 810, 810; see Espinal v 1Welville Snow Co11trs. , supra). However, there are "three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care- and thus be potentially liable in tort-to third persons: (1) where the contracting party, in fail ing to exercise reasonable care in the performance of his duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely" (Espinal v Melville Snow Co11trs., supra at 140 [internal quotation marks and citations omitted'!). Under the "storm in progress" rule, "a property owner will not be held liable in negligence for accidents occun-ing as a result of a slippery snow or ice condition occurring during an ongoing storm or for a reasonable time thereafter" (Isabel v New York City Hous. Auth. , 171 AD3d 714, 714 [internal quotation marks omitted]; see Sherman v New York State Thruway Auth., 27 NY3d l 0 19; Haxhia v Varanelli, 170 AD3d 679). Here, the invoices generated by Innovative and Mac indicate a large amount of snow was cleared on February 13, 2014, and some snow was cleared on February 14, 2014. The climatological records reveal that precipitation foll for much of the day on February 13, 2014 but only 0.02 inches fell on February 14, 2014. Significantly, the hour-by-hour meteorological records submitted by Hines and Innovative indicate that zero precipitation fe ll between 8:00 a.m. and the time of the plaintiff's fall on February 14, 2014. In addition, plaintiff testified that while she saw snow accumulations on grassy surfaces, she observed no precipitation falling when she entered the building at the subject premises on the morning of February 14, 2014, nor when she left the building approximately nine hours later. Under these circumstances, Hines and Innovative failed to establish their entitlement to judgment as a matter of law pursuant to the storm in progress rule (see Casey-Bernstein v Leach & Powers, 170 AD3d 651 ; Morris v Home Depot, 152 AD3d 669). Further, Hines and Innovative failed to establ ish a prima facie case that they lacked notice of the alleged dangerous condition in the parking lot. To demonstrate lack of constructive notice, "a defendant 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" (Barrett v Aero Snow R emoval Corp., 167 AD3d 519, 520 [internal quotation omitted]~ see Lauture v Board of Mgrs. at Vista at Killgsgate, S ection II, 172 AD3d 1351 ). While no evidence of actual notice has been adduced, Hines and Innovative failed to submit evidence of when the incident location was last inspected and, thus, have not established a prima fac ie case of lack of constructive notice (see Ghent v Santiago, 173 AD3d 693). Contrary to defendants' arguments, the fact that plaintiff failed to see the icy condition prior to her fa ll is " not conclusive" because she was looking forward and not downward (see Barrett v Aero Snow Removal Corp., supra). Mac established its prima facie case of entitlement to summary judgment in its favor as to plaintiffs complaint (see Cayetano v Port Autlt. of NY & New Jersey, 165 AD3d 1223). It demonstrated through the deposition testimony of witnesses that it was hired by Innovative to perform limited snow and ice clearing services at the subject parking lot pursuant to contract. Thus, it proved, prima facie, that it owed plaintiff no duty (see Espinal v Melville Snow Contrs. , supra). In establishing [* 5] Burkes v Hines REIT Three Index No. 16-4286 Page 5 its prima facie case, Mac was not required to show the inapplicability of any exception to &pinal, as no exceptions were pleaded in plaintiffs complaint or bi I ls of particulars (see Burger v Brickman Group Ltd., LLC, 174 AD3d 568; Sampaiolopes v Lopes, 172 AD3d 1128). In opposition to Mac' s motion, plaintiff argues that triable issues remain as to whether Mac " launched a force or instrument of harm by creating and/or exacerbating a dangerous ice condition" in the subject parking lot. More specifically, plaintiff asserts that Mac's plowing of snow into piles adjacent to the area of plaintiffs fall could have "foreseeably resulted in a dangerous condition due to the melting and freezing process." However, plaintiffs claim is speculative and unsupported by sufficient evidence. By merely plowing the snow in accordance with the contract and leaving some residual snow or ice in the area, Mac cannot be said to have created a dangerous condition and thereby launched a force or instrument of harm (see Fung v Japan Airlines, 9 NY3d 351; Espinal v Melville Snow Contractors, supra; Rudloffv Woodland Po11d Condo Assn., 109 AD3d 81 O; Quintanilla v John Mauro's Lawn Service, 79 AD3d 838; Foster v Herbert Slepoy Corp, 76 AD3d 210). Accordingly, the branch of Mac's motion for summary judgment dismissing plaintiffs complaint against it is granted. The branch of the motion for summary judgment dismissing the cross claims against Mac for contribution is also granted since there was no evidence that Mac owed either a duty of reasonable care to the plaintiff or a duty of reasonable care independent of its contractual obligations to Innovative (see Morris v Home Depot, supra; Abramowitz v Home Depot, 79 AD3d 675; Wheaton v East End Commons, 50 AD3d 675). The branch of the motion to dismiss the cross claims for contractual indemnification is also granted. Indemnification provisions "are strictly construed, and the right to contractual indemnification depends upon the specific language of the contract" (Davis v Catsimatidis. 129 AD3d 766, 768). Although the contract indicated that Innovative would be named as an additional insured, there is no indemnification provision in the agreement (see Vil/011 v Town Sports Int. , 128 AD3d 609; Cunningham v North Shore Univ. Hosp., 123 AD3d 650). However, the branch of Mac 's motion for summary judgment on the cross claims for common law indemnification is denied. The record indicates that the plaintiff fell as she stepped onto the parking lot and Innovative alleges that Mac was responsible for plowing the parking lot and applying salt and sand to the area. Thus, questions of fact exist as to whether the plaintiffs injuries were attributable to the negligence or nonperformance of an act that was solely within the province of Mac (see A bramowitz v Home Depot, supra; Wheaton v East E11d Comnro11s, supra; Vi/1011 v Toiv11 Sports /111., su~ ~ Dated: November 14, 20 19 HON. JOSEPH C. PASTORESSA, J.S.C. FINAL DISPOSITION _ X _ NON-FI NA L DISPOSITION
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