Stevens v 56 W. LLC

[*1] Stevens v 56 W. LLC 2019 NY Slip Op 52020(U) Decided on December 16, 2019 Supreme Court, Kings County Landicino, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 2019
Supreme Court, Kings County

Duane Stevens and Deborah Stevens, Plaintiffs,

against

56 West LLC, Brooklyn Expo Center LLC and Events Group Inc. and Outfit Security & Promotions, LLC, Defendants.



519766/16
Carl J. Landicino, J.

The following papers numbered 1 to 16 read herein:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed 1-2, 3-4

Opposing Affidavits (Affirmations) 5-11

Reply Affidavits (Affirmations) 12-16

Upon the foregoing papers, defendant Impact Events Group Inc. (Impact) moves, in motion (mot.) sequence (seq.) five, pursuant to CPLR 3212, for summary judgment dismissing the complaint of plaintiffs Duane Stevens (plaintiff) and Deborah Stevens, (plaintiff's wife) (collectively, plaintiffs) and all cross claims asserted against it. Defendant Outfit Security & Promotions LLC (Outfit) moves, in mot. seq. four, pursuant to CPLR 3212, for summary judgment dismissing plaintiffs' complaint and all cross claims asserted against it.

Overview

Plaintiff commenced the instant action for personal injuries he allegedly sustained when, while participating as a vendor at the Brooklyn Antiquarian Book Fair, he tripped and fell over a stack of two wooden pallets in the parking lot of the Brooklyn Expo Center (the Center). The Center was located at 72 Noble Street and 79 Franklin Street in Brooklyn. At the time of the accident, defendant 56 West LLC (56 West) purportedly owned the Center. Pursuant to a written lease, 56 West leased the Center (i.e. the building at "79 Franklin Street" to defendant Brooklyn Expo Center LLC (BEC LLC). BEC LLC, in turn, leased the "Main Exhibit Room" and the "Break out spaces" of the Center to Impact for the purpose of hosting the book fair pursuant to a [*2]written contract for the period of September 8, 2016 to September 11, 2016. Impact, in turn, hired Outfit, 56 West's "preferred vendor" under the BEC LLC/Impact contract, to provide security, porter, parking, janitorial and bartending services at the Center and parking lot during the three-day book fair pursuant to Outfit's one-page "Service Invoice."

Facts and Procedural History

Plaintiff testified that on September 9, 2016, he and his wife, Deborah Stevens, drove from Massachusetts to Brooklyn in their minivan and arrived at the Center between 1:00 p.m. and 2:00 p.m. When they pulled into the parking lot, plaintiff observed several young men wearing uniforms and badges "directing traffic." One man met plaintiff and his wife "at the gate" and identified them. Two or three of these men directed plaintiff and his wife where to park and gave plaintiffs a sheet of paper bearing the name of his business to place on his dashboard for parking purposes. Plaintiff was then instructed to drive "in a semi circular fashion" in the parking lot and to park in a specific parking space, with his van pointed away from the Center, and 10 to 15 feet away from an adjacent building located to the right of his van.Plaintiff and his wife exited their van and walked through the parking lot into the Center to locate their booth. Plaintiff then made two separate trips back to his vehicle to unload his merchandise. While unloading, plaintiff did not observe any debris or wooden pallets in the parking lot, nor did plaintiff's wife tell him that she had observed any there.

At approximately 9:00 p.m., while still at the Center, plaintiff's wife called for a cab and plaintiff walked "straight" through the parking lot in order to pick up his luggage from his van. When he initially began to walk across the parking lot, he was able to see the paved area of the lot ahead of him but as he got "progressively toward the van, [he] could not." When plaintiff was approximately 10-15 feet or a few feet away from his van, he tripped over a "short stack of wooden pallets," approximately one and one-half feet high, and fell. Plaintiff stated that he had not seen the pallets until after he had tripped and fallen, had not seen any other fair participants using wooden pallets, and had not used any wooden pallets to transport items into the Center. Except for "a light shining off the back rear corner of his van from a distance," there was no illumination in the area where he tripped; it "was pitch dark."

Plaintiff called his wife and told her to come and help him. While plaintiff was pulling himself up from the ground onto the pallets, plaintiff's wife arrived with one of the security guards from the Center. Plaintiff used his van and a neighboring vehicle to pull himself onto the driver's seat of his van. The security guard called an ambulance, which arrived within minutes, and transported plaintiff and his wife to the hospital.

Plaintiff was not aware of anyone else having made complaints about the location of the pallets, of how the pallets had gotten in the parking lot or for how long they had been there. He also testified that the distance from the back of his van to the pallets was approximately 8-10 feet; that during both trips he made to unload his merchandise in the afternoon, nothing would have prevented him from seeing the wooden pallets; and that while unloading his merchandise, he would have passed by the two wooden pallets.

Plaintiff's wife testified that she had seen the pallets earlier during the day when she and plaintiff had arrived at the Center; that it was her opinion that they should not have been there; and that she did not notify anyone at the Center about the pallets or mention them to plaintiff before the accident occurred. She also testified that she was not aware of any complaints made [*3]by anyone regarding the presence of the pallets prior to the accident; that she did not see any vendors attending the book fair using pallets; that the parking lot in the area where the accident occurred was "really dark;" and that the exterior lights which were affixed to the building near where their van was parked were not on.

By summons and complaint dated November 8, 2016, plaintiffs commenced the instant negligence action against defendants. On or about January 4, January 17, and May 8, 2017, defendants 56 West, BEC LLC, and Impact, respectively, interposed their answers generally denying the allegations of the complaint and asserting cross claims for contribution, common-law and contractual indemnification, and breach of contract for failure to procure insurance. On May 24, 2018, after discovery was conducted, plaintiffs moved for leave to file a supplemental summons and first amended complaint naming Outfit as a defendant, which this court granted by order dated April 25, 2018 (Landicino, J.). Plaintiffs filed the amended summons and first amended complaint on or about May 14, 2018. On or about May 24, May 29, June 4, and July 6, 2018, respectively, BEC LLC, Impact, 56 West, and Outfit joined issue by serving their answers to plaintiffs' amended complaint. Plaintiffs filed their note of issue and certificate of readiness on November 14, 2018. Discovery is now complete, and the motions of Impact and Outfit for summary judgment are presently before the court for disposition.

Discussion

"It is fundamental that, in order to be held liable in tort, the alleged tortfeasor must have owed the injured party a duty of care" (Tilford v Greenburgh Hous. Auth., 170 AD3d 1233, 1235 [2d Dept 2019] [internal citations and quotation marks omitted]; Suero-Sosa v Cardona, 112 AD3d 706, 707 [2d Dept 2013]; Alnashmi v Certified Analytical Group., Inc., 89 AD3d 10, 13 [2d Dept 2011]). "The existence and extent of a duty is a question of law (Alnashmi, 89 AD3d at 13). "An owner or tenant in possession of realty owes a duty of reasonable care to maintain the property in a reasonably safe condition" (Abdul-Azim v RDC Commercial Ctr., 210 AD2d 191, 191 [2d 1994]; Zukerman v State of New York, 209 AD2d 510, 511-512 [2d Dept 1994] ["An occupant of premises, like an owner, has a common law duty to keep the property in a reasonably safe condition"]; Stevenson v Saratoga Performing Arts Ctr., Inc., 115 AD3d 1086, 1087 [3d Dept 2014]). The determinative issue is one of possession and control" (Abdul-Azim, 210 AD2d at 191).

Further, "[a]s a general rule, liability for a dangerous or defective condition on property is predicated upon ownership, occupancy, control, or special use of the property" (Tilford, 170 AD3d at 1235; Slavin v Village of Sleepy Hollow, 150 AD3d 924, 925 [2d Dept 2017]). "The existence of one or more of these elements is sufficient to give rise to a duty of care" (Tilford, 170 AD2d at 1235). "However, liability can also be imposed upon a party that creates a defective condition" (id.; see also Casson v Connell, 148 AD3d 863, 864 [2d Dept 2017]; Servo v Bank of NY, 96 AD3d 732, 732-733 [2d Dept 2012]).

Impact's Summary Judgment Motion

Impact moves for summary judgment dismissing plaintiffs' complaint and all cross claims asserted against it. In support of that branch of its motion to dismiss the complaint, Impact argues that it owed no duty to plaintiff because it was not obligated to maintain the parking lot during the course of the book fair. In particular, Impact points out that under its agreement with BEC LLC, it only rented the "Main Exhibit Room" and "Break out spaces" of the Center; it was [*4]only obligated to enforce fire lanes and "'no parking' zones" during the event; and that "[m]aintenance services" for the event were to be provided by Outfit, 56 West's preferred vendor for the Center.

In opposition to this branch of Impact's motion, 56 West, BEC LLC, and plaintiff (adopting the arguments of all opposing codefendants), assert that the BEC LLC/Impact agreement, the post-remedial actions of Mr. Marvin Getman (owner of Impact) instructing Mr. Orlando St. Preux (owner of Outfit) to discard the pallets after the accident, and the deposition testimony of Mr. Getman and Mr. St. Preux raise a material question of fact as to whether Impact possessed, occupied, controlled or made special use of the parking lot, i.e. whether Impact (and/or Outfit) assumed a duty to maintain the parking lot for the duration of the book fair.

In reply, Impact argues that maintenance obligations for the premises were never delegated to it because they rested solely with Outfit, 56 West's preferred vendor; that mere permission to use a parking lot does not establish control or give rise to a duty to warn; and that Mr. Getman's instructions to an Outfit employee to remove the pallets in fact demonstrates Impact's reliance upon Outfit for maintaining the parking lot.

It is true, as Impact contends, that under the BEC LLC/Impact agreement, Impact only rented the "Main Exhibit Room" and "Break out spaces" of the Center. Further, pursuant to paragraph 13 of the agreement entitled "Parking," "[a]ll parking rights [were] under the exclusive control of the Owner [56 West])." However, this provision also states that:

"All vehicles are to be driven and parked in designated areas unless directed by Owner's authorized representatives. Exhibitor [Impact] is responsible for the enforcement of fire lanes and 'no parking' zones during the Exhibit. Parking fees must be approved by Owner and will only be permitted if Exhibitor is renting the entire center. Exhibitor agrees to use owner's preferred vendor for valet services, parking and traffic directors. Exhibitor agrees to follow preferred vendor recommendations related to the operation of the valet and traffic, including [a]mount of parking attendants and traffic directors. BEC will have the final approval of all recommendations and agreements between the Exhibitor and the preferred vendor. Exhibitor agrees to maintain 2 traffic lanes available at all times in the parking lot leading from Noble street gate to West street gates as explained in the attached floor plan. Exhibitor agrees not to allow any parking, traffic, loading or unloading on OAK street" (emphasis added).

Thus, Impact was also required to enforce fire lanes and no parking zones, to maintain two traffic lanes connecting Noble and West streets, and to prohibit parking, traffic etc. on Oak Street. Further, pursuant to paragraph 12 of the agreement entitled "Maintenance," as well as Mr. Getman's deposition testimony, Impact was also required "to hire owner's preferred vendor [Outfit] for maintenance services;" provide two bathroom attendants, "toilet paper[], cleaning supply/equipment and garbage cans for the entire duration of the exhibit including setup and breakdown," and to provide "3 maintenance person[nel] for the expo and surrounding area" (emphasis added). The agreement does not define the terms "expo" or "surrounding areas". However, the former is reasonably understood to mean the Center under the agreement ("Brooklyn Expo Center [the 'Center']") (see BEC LLC/Impact agreement, Terms and [*5]Conditions, un-numbered first paragraph) and the latter to mean the parking lot, inasmuch as there is nothing else surrounding the Center except the parking lot, nor is there any area surrounding the Center which involved Impact's book fair except the parking lot. Notably, Impact fails to address this part of the maintenance provision in its reply, reiterating that it was only responsible for providing "toilet paper, cleaning supply/equipment" etc. and that it "had no maintenance responsibilities concerning the parking lot during the course of the book fair."

Therefore, Impact's own submission (i.e. the BEC LLC/Impact agreement), raises a material question of fact as to whether it was obligated to maintain the parking lot in a safe condition for the duration of the book fair and thus, whether it owed plaintiffs a duty of care (see e.g. Stevenson, 115 AD3d at 1087 [American Cancer Society, holding fund-raising gala at a catering hall owed, "as a licensee exercising control . . . a duty to those on the property to maintain the premises in a reasonably safe condition during the period of its use" where it entered into contract for use of the hall, approved floor plan for event, hired entertainment, and its representatives were present and oversaw the set up and events]; Casson,148 AD3d at 865 [defendant/owner who rented her home but: 1) retained the right to enter it to examine and make repairs with 24 hours' notice, 2) employed worker who maintained premises and performed snow removal, and 3) testified that she and her employee were responsible for snow removal between the main house and pool house, failed to make a prima facie showing that she did not have a duty to remove snow and ice between the main house and the pool house]; Armbruster v In the Woods Assn, 249 AD2d 980, 981 [2d Dept 1998] [court erred in granting the motion of a homeowner's association for summary judgment on grounds that it did not assume any responsibility or control over the icy sidewalk upon which plaintiff fell in view of conflicting evidence that individual homeowners were exclusively responsible for applying calcium, sand or salt to their sidewalks, and proof that association's snow removal contractor was responsible under its contract with the association to make those applications at the direction of the association] [emphasis added]; Zukerman, 209 AD2d at 511-512 [court erred in granting summary judgment to State where "control of the premises . . . was a cooperative effort" by the State and the Dormitory Authority]; McCloskey v Vornado Realty Tr., 2014 NY Slip Op 30772, *12 [Sup Ct, NY County 2014] [under its contract with lessee to rent Pier 94 in New York City for a trade show event, licensee "had certain obligations to keep the entranceway" where the accident occurred clear, and thus had a duty to maintain the premises in a reasonably safe condition]; cf. Servo, 96 AD3d at 733 [where plaintiff was injured when she tripped on a sidewalk near the entrance of the owner's building, lessee of ground floor of building owed plaintiff no duty of care where lease showed that owner was responsible for maintaining the sidewalk and that defendant had no control over or duty to maintain it]; Hoberman v Kids "R" Us, Inc., 187 AD2d 187 [1st Dept 1993] [where plaintiff fell over dolly located on sidewalk in front of defendant store, store owed no duty to plaintiff "in the absence of any right [under lease] or exercise of control over the sidewalk"]). Based upon the foregoing, the court need not consider the sufficiency of codefendants' arguments in opposition to this branch of Impact's motion (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

In any event, even assuming Impact has made a prima facie showing that it owed plaintiff no duty, 56 West, BEC LLC, Impact and plaintiff have raised a material question of fact as to whether Impact made special use of the parking lot. As an initial matter, as [*6]codefendants/plaintiffs argue in opposition, Mr. Getman testified that he hired Outfit to perform various functions at the parking lot for Impact, i.e. checking the vendors in; permitting them access to the parking lot by identifying them; providing them with identification cards and parking passes prepared by Mr. Getman; moving cars in the parking lot if required; and helping vendors bring their merchandise from their cars at the loading dock into the Center. Further, Mr. St. Preux testified that Outfit's employees would open the gate to the parking lot in the morning, keep the loading dock clear; and were responsible for ensuring that the parking lot was safe and secure.

Moreover, as 56 West and BEC LLC argue in opposition, Mr. Getman testified that the parking lot where plaintiff fell was used only by Impact's book vendors, not patrons of the book fair. In this regard, Mr. Getman testified that at the "front" of the parking lot, two Outfit employees would check the vendors in, and another Outfit employee in the parking lot would tell vendors where to park. In particular, Mr. Getman explained that the location with respect to where the vendors would park depended upon whether the particular vendor was going to park in the lot for the duration of the three-day book fair, or whether he/she was going to stay just one day and move his/her car out of the parking lot at night. He also testified, and his corresponding emails to BEC LLC employee Chris Rechner indicate, that 30 of the vendors from the book fair were going to be parking their cars in the parking lot for the duration of the event, and that he provided these vendors with parking passes to display in their windshields. Further, Mr. Getman requested that BEC LLC close the entrance of the adjacent street (Noble) "for the weekend."

In addition, Mr. Getman conceded at his deposition that "[w]hen Impact . . . entered into this lease agreement, part of the lease agreement permitted [it] to use the parking lot space." Moreover, Mr. St. Preux testified that if he had seen the pallets before the accident, he would have reported them to Mr. Getman. Correspondingly, after the accident, Mr. Getman instructed someone from Outfit to "get rid of those pallets" (David v City of New York, 267 AD2d 419, 420 [2d Dept 1999] [emphasis added] ["Evidence that repairs were made or remedial measures taken after an accident are not admissible to show that a party was negligent unless there is a disputed issue of maintenance or control"]).

Lastly, codefendants/plaintiffs note that Mr. Zelman Lebovic, comptroller for BEC LLC, testified that under the BEC LLC/Impact agreement, BEC LLC leased the Center and the parking lot to Impact. Mr. Lebovic also stated that Impact was responsible for maintaining the parking lot on the date of the accident based, in part, upon paragraphs 3, 28, and 32 of the agreement. In particular, paragraph three states that: "[n]o portions of the sidewalks, ramps, entries, doors, corridors, vestibules, hallways, lobbies, stairways, aisles or driveways of the Center shall be impeded by [the] exhibitor. Moreover, as noted previously, paragraph 13 required Impact to "maintain [i.e. keep] 2 traffic lanes available at all time in the parking lot leading from Noble street gate to West street gates . . ." Further, paragraphs 28 and 32 required Impact, respectively, to procure insurance and indemnify 56 West and BEC LLC.

Mr. Lebovic also testified that Impact's responsibility to maintain the parking lot was evidenced by its own conduct, namely that Impact was using the parking lot for its event, that the event was under Impact's control, that Impact asked for "specific parking tickets" and "wanted to have access," and that it was Impact's responsibility to clean the garbage from the parking lot and to monitor the parking lot. Finally, Mr. Lebovic testified that there were no BEC LLC employees [*7]"on site" at the "property" to monitor the parking lot, to remove garbage or perform other duties. Under the circumstances, Impact's conduct raises a material question of fact as to whether it made special use of the parking lot (see e.g. Stevenson, 115 AD3d at 1087 [American Cancer Society, holding fund-raising gala at a catering hall, owed, "as a licensee exercising control . . . a duty to those on the property to maintain the premises in a reasonably safe condition during the period of its use" where it entered into a contract for use of the hall, approved floor plan for event, hired entertainment, and its representatives were present and oversaw the set up and event]; Farrar v Teicholz, 173 AD2d 674 [2d Dept 1991] [while lease between owner of shopping center and tenant supermarket stated that owner was responsible for maintenance and repair of parking lot, supermarket's practice of inspecting lot and calling its own maintenance department with complaints, which would either notify owner or make repair, presented issue of fact as to whether supermarket maintained or controlled parking lot and whether it was negligent in doing so]; see also McCloskey,2014 NY Slip Op 30772, *12 [Sup Ct, NY County 2014] [under its contract with lessee, exhibitor/licensee has certain obligations to keep the entranceway where the accident occurred clear, which demonstrated evidence of control]; Scavuzzo v City of New York, 2005 NY Slip Op 51826 [U], * 2-3 [Sup Ct, NY County 2005], quoting Kozak v Broadway Joe's, 296 AD2d 683, 684 [3d Dept 2002] ["'Liability for a dangerous condition on property . . . may be found where there is some indication that the tenant created the dangerous condition, owned or retained any control . . . or had authority to correct the condition'" and thus triable issue of fact existed as to whether, pursuant to certain provisions in the lease, lessee/museum "had some control over the premises upon which plaintiff allegedly fell"]).

As to whether Impact has made a prima facie showing that it did not create or have actual or constructive notice of the pallets, Impact contends that there is no evidence that it created the dangerous condition because plaintiffs, Mr. Getman and Mr. St. Preux testified that the vendors at the event did not use wooden pallets, and because the exterior lights, which were not illuminated, were affixed to a separate building which was not part of the BEC LLC/Impact agreement. Impact also argues that it did not have constructive notice of the pallets because Mr. Getman testified that he had never had any discussions with anyone nor had he received any complaints concerning the condition of the parking lot prior to or on the date of the accident,[FN1] and because the BEC LLC/Impact agreement "did not extend to any maintenance responsibilities of the subject parking lot."

In opposition, plaintiff and BEC LLC argue that Impact had constructive notice of the dangerous condition. In particular, they note that Mrs. Stevens testified that she had seen the pallets when she and plaintiff arrived at the Center between 1:00 p.m. and 2:00 p.m., and that the pallets were in the same location when plaintiff tripped over them seven or eight hours later. Plaintiff also asserts that Impact has failed to show that it did not have constructive notice of the pallets because it failed to demonstrate when the area at issue was last cleaned or inspected relative to the time when plaintiff fell. In its own opposition, 56 West merely asserts in conclusory fashion that Impact must indemnify it because of Impact's "alleged carelessness."

Impact has made a prima facie showing that it did not create the dangerous condition because plaintiffs, Mr. Getman and Mr. St. Preux testified that the vendors at the event did not [*8]use wooden pallets. Further, the building to which the exterior lights were affixed is not referenced in the BEC LLC/Impact agreement. However, Impact has failed to make a prima facie showing that it did not have constructive notice of the dangerous condition, i.e. the pallets. "To meet its initial burden on the issue of lack of constructive notice, [a] defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" (Granillo v Toys "R" Us, Inc., 72 AD3d 1024, 1025 [2d Dept 2010]). Impact has failed to provide this evidence. In view of the foregoing, the court need not address the sufficiency of the arguments made by plaintiff, 56 West, and BEC LLC in opposition to this branch of Impact's motion. In any event, inasmuch as the pallets were visible during the daytime and possibly remained at the accident site for seven to eight hours, a material question of fact exists as to whether Impact had constructive notice of that condition (Stevenson, 115 AD3d at 1088). Thus, that branch of Impact's motion for summary judgment dismissing the complaint is denied.

Impact also moves to dismiss all cross claims albeit it only addresses those claims seeking common-law and contractual indemnification. However, inasmuch as Impact did not establish that it was free from negligence in the happening of the injured plaintiff's accident, this branch of Impact's motion is also denied (Gatto v Coinmach Corp., 172 AD3d 1176, 1179 [2d Dept 2019]).[FN2]

[*9]Outfit's Summary Judgment Motion

Outfit also moves for summary judgment dismissing the complaint and all cross claims asserted against it. "'[G]enerally, a contractual obligation, standing alone, is insufficient to give rise to tort liability in favor of a non-contracting third party'" (Reeves v Welcome Parking Ltd. Liab. Co., 175 AD3d 633, 634 [2d Dept 2019], quoting Giannas v 100 3rd Ave. Corp., 166 AD3d 853, 856-857 [2d Dept 2018] [internal quotation marks omitted]; Espinal v Melville Snow Contrs., Inc., 98 NY2d 136, 138 [2002]). Nevertheless:

"'there are three exceptions to this general rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm or creates or exacerbates a hazardous condition; (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'" (id., quoting Hagan v City of New York, 166 AD3d 590, 592 [2d Dept 2018]; Espinal, 98 NY2d at 140).

In support of that branch of its summary judgment motion seeking dismissal of plaintiff's complaint, Outfit first argues that the service invoice it provided to Impact demonstrates that it did not owe any contractual duty to plaintiff. In particular, Outfit points out that the invoice merely contains information relevant to staffing requirements and billing, namely, a list of each type of staff ("Event captain, Security/Fire Guard, Overnight Security, Porter, Parking Attendant, etc.), the number of persons required for each category, and the cost for each person, without any detail regarding the particular services provided, including where they were to be performed.

In the alternative, Outfit argues that it did not launch a force or instrument of harm because there is no evidence that it owned or placed the pallets in the parking area where plaintiff fell, otherwise launched a force or instrument of harm, or failed to perform a contractual obligation which increased the risk of harm sufficient to give rise to a duty of care.

All three codefendants and plaintiff oppose this branch of Outfit's motion. 56 West argues that Outfit failed to make a prima facie showing that it did not assume a common-law duty of care to plaintiff (or launch a force or instrument of harm) because Outfit controlled and occupied the parking lot, was Impact's agent for the parking lot during the three-day event, and admitted that it was obligated to keep the parking lot safe and secure.

BEC LLC also argues that as possessor of the property (Outfit) or as the agent of the possessor (Impact) of the property, the deposition testimony that it was responsible for parking lot safety and inspections, in addition to certain provisions of the BEC LLC/Impact agreement, raise a material question of fact as to whether Outfit controlled the parking lot, and thus whether Outfit owes plaintiff and its codefendants a duty of care. In addition, BEC LLC contends that Espinal is inapplicable to the instant analysis since neither Impact nor Outfit were hired as maintenance contractors and were, respectively, the possessor of the property, including the parking lot, and the agent thereof. In any event, even assuming Epinal's applicability, BEC LLC asserts that Outfit is liable to third parties in tort. Specifically, BEC LLC asserts that Outfit "entirely displaced the obligations of the owner or possessor [i.e. Impact] to inspect or maintain [*10]that area" because Outfit maintained the Center and the parking lot during the book fair on Impact's behalf.

Impact argues that Outfit failed to make a prima facie showing that it did not launch a force or instrument of harm because it failed to demonstrate that it complied with its obligations under the BEC LLC/Impact agreement to provide security, maintenance and parking services during the book fair. Impact also asserts that Outfit failed to show that it did not owe plaintiff a duty of care based upon Mr. St. Preux's testimony that Outfit was responsible for ensuring that the parking lot was safe, and that Outfit did not provide any information concerning the performance of its services on the date of the accident.

Finally, plaintiff argues that Outfit has failed to establish that it did not have constructive notice of the subject pallets.

Outfit has made a prima facie showing that it did not owe plaintiff a duty of care. As an initial matter, its service invoice does not require it to inspect, patrol or maintain the parking lot. In the absence of any specific contractual obligations, the invoice is insufficient to give rise to a tort liability to third persons.

Moreover, it is undisputed that Outfit did not own the parking lot, and the service invoice demonstrates that it merely provided personnel to work at the parking lot, not to make special use of it. As to whether Outfit occupied or controlled the parking lot, that Outfit performed duties in the parking lot for the vendors on behalf of Impact is insufficient to establish that they occupied or controlled the parking lot so as to subject it to liability (Leibovici v Imperial Parking Mgt. Corp., 139 AD3d 909, 910 [2016]; Usman v Alexander's Rego Shopping Ctr., Inc., 11 AD3d 450, 451 [2d Dept 2004]; Fung v Japan Airlines Co., Ltd., 51 AD3d 861, 863 [2d Dept 2008], lv denied 11 NY3d 713 [2008] [internal citations and quotation marks omitted] [airline "could not be held liable to the plaintiff because its agreement with the Port Authority was not a comprehensive and exclusive agreement that entirely displaced the Port Authority's duty as the owner to safely maintain the parking lot"]; Guzman v Jamaica Hosp. Med. Ctr., 163 AD3d 636, 637 [2d Dept 2018] [manager of parking lot where plaintiff fell did not owe plaintiff a duty of care to maintain or repair the lights or concrete, and could not be held liable for permitting the existence of a dangerous condition where it demonstrated that it was not in exclusive possession of the parking garage, had no obligation or right to perform repairs to the lights or the concrete there, and there was no evidence that it created the condition which allegedly caused plaintiff's accident]).

As to whether Outfit owes plaintiff a duty of care under the Espinal analysis, where pleadings contain allegations which would establish its exceptions, a defendant is required to eliminate all triable issues of fact with regard thereto in order to establish a prima facie showing entitling it to summary judgment (Rubistello v Bartolini Landscaping, Inc., 87 AD3d 1003, 1004-1005 [2d Dept 2011]). Here, plaintiffs' verified bill of particulars[FN3] essentially allege that [*11]defendants failed to exercise reasonable care in failing to remove the pallets. Nevertheless, inasmuch as plaintiffs also allege that the parking area where plaintiff fell was "negligently, carelessly and recklessly maintained as it was not cleared of debris," viewing the verified bill of particulars in the light most favorable to plaintiffs, they have alleged that defendants launched a force or instrument of harm.

However, "[u]niformly, a launch of a force or instrument of harm has been interpreted as requiring that the contractor create or exacerbate the dangerous condition" (Santos v Deanco Servs., Inc., 142 AD3d 137, 141 [2d 2016]). Outfit has demonstrated that it did own or place the pallets, or otherwise launch a force or instrument of harm. In this regard, Mr. St. Preux testified that the day prior to the accident, and during the afternoon on the day of the accident, respectively, he had walked through the parking lot to check on how things were going and to give the parking attendants their breaks. He also testified that he had not seen the pallets before he learned of plaintiff's accident, and that had he seen them, he would have reported them to Mr. Getman to see what Mr. Getman wanted to do with them. Further, Mr. St. Preux testified that he did not know who owned the pallets, how the pallets had gotten to that location, or who placed them there.

Thus, as Outfit did not discover the pallets shows only that it "merely failed to become 'an instrument for good,' which is insufficient to impose a duty of care upon a party not in privity of contract with the injured party" (Espeleta v Synergy Resources, Inc., 172 AD3d 1320, 1321-1322 [2d Dept 2019], quoting Church v Callanan Indus., 99 NY2d 104, 112 [2002] [internal quotation marks omitted] [where defendant failed to correct an alleged tripping hazard (extension cord wires on ground), it merely failed to become an instrument for good and therefore owed no duty of care to plaintiff]; see also Santos, 142 AD3d at 141 [the alleged failure by snow removal contractor to apply salt on ground would "neither create ice nor exacerbate an icy condition, as the absence of salt would merely prevent a preexisting ice condition from improving" and thus contractor did not owe the injured plaintiff a duty of care]; Rahim v Sottile Sec. Co., 32 AD3d 77, 81 [1st Dept 2006] [internal citations and quotation marks omitted] [while security guard in store may have been negligent in failing to discover an assailant, guard did not launch a force or instrument of harm (i.e. the assailant) - his refusal to stay in store after it closed was at most a refusal to become an instrument for good and thus defendant security company did not owe plaintiff a duty of care]). In any event, this first Espinal exception "cannot be triggered where, as here, there is only speculation and conjecture regarding whether the contractor created or exacerbated [the dangerous] condition" (Santos, 142 AD3d at 143).

Codefendants and plaintiffs have failed to raise a triable issue of fact as to whether Outfit's obligation to keep the parking lot in a safe condition or that its alleged failure to comply with its security, maintenance and parking obligations constituted launching a force or instrument of harm. Nor have they raised a triable issue of fact as to whether Outfit's failure to discover the [*12]pallets constituted launching a force or instrument of harm. 56 West's reliance upon Garda v Paramount Theatre, LLC (145 AD3d 964, 966 [2d Dept 2016]) is misplaced. In Guarda, the Appellate Division held that the security company had assumed a common-law duty of care because it "called for" and "instructed" the plaintiff, employed by another entity at the same premises, to "investigate, restrain and/or detain a John Doe," who injured plaintiff. Here, Outfit's mere failure to discover the pallets did not place plaintiff in a more vulnerable position than if it had not acted at all. Nor did Outfit's lack of affirmative conduct enhance the risk that plaintiff faced, create a new risk or induce plaintiff to forego some opportunity to avoid the risk (Rodriguez v Cty. of Westchester, 138 AD3d 713, 717 [2d Dept 2016]). Further, BEC LLC has failed to raise a triable issue of fact as to whether Outfit qualifies as a contractor under Espinal and whether or not Espinal is inapplicable to the determination of whether Outfit owes a duty to plaintiff.

Moreover, BEC LLC's argument that Outfit entirely displaced Impact's obligations to maintain the parking lot is misplaced. As an initial matter, plaintiffs did not allege this third Espinal exception in their pleadings. In any event, both Impact and 56 had a non-delagable duty to keep the premises safe (Abdul-Azim, 210 AD2d at 191 ["(a)n occupant of premises, like an owner, has a common law duty to keep the property in a reasonably safe condition"]; see also Stevenson, 115 AD3d at 1087; Zukerman, 209 AD2d at 511-512). Apart from this duty, the court has already found that a triable issue of fact exists as to whether Impact made special use of the parking lot, which undermines the claim that Outfit entirely displaced Impact's obligations to maintain the parking lot. Finally, contrary to plaintiffs' claim, Outfit made a prima facie showing that it did not have constructive notice of the pallets. In any event, even assuming Outfit had constructive notice, such notice is irrelevant since Outfit owes no duty of care to plaintiff.

Outfit has also made a prima facie showing entitling it to summary judgment dismissing plaintiffs' claim for negligent selection/engagement/training and employment of its employees. "To establish a cause of action based on negligent hiring, negligent retention, or negligent supervision, it must be shown that the employer knew or should have known of the employee's propensity for the conduct which caused the injury" (Shor v Touch-N-Go Farms, Inc., 83 AD3d 927, 928 [2d Dept 2011]). Moreover, "[t]here is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee" (id. [internal citations and quotation marks omitted]).

In support of this branch of its motion, Outfit relies upon the deposition testimony of its owner, Mr. St. Pruex, who testified that the fire guards he provided for the book fair were licensed by the New York City Fire Department, and that the overnight security guard had a security license. He also testified that all of his security guards were required to take the New York City security guard test to work for Outfit, and that if someone was injured, the security guards would follow the procedures set forth in the New York City security guard guidelines. With respect to the parking attendants, Mr. St. Preux testified that while they did not have written guidelines for their job duties, they learned their job duties from him according to the needs of the client.

Outfit has made a prima facie showing that it was not negligent in hiring, training or supervising its employees working at the book fair. The security and fire guards were licensed [*13]and thus qualified to work in their positions; they followed New York City procedures if someone was injured; and the only other employees who worked in the parking lot were the parking attendants whom Mr. St. Pruex instructed with respect to their duties, according to the needs of the client. In any event, except for possibly raising the gate at the entrance of the parking lot, the duties of the parking lot attendants were "so ordinary and within the ken of the average person," that Mr. St. Preux had "no duty to provide instruction, warnings and/or assistance in how to perform [them]" (Stroschine v Prudential-Bache Sec., 207 AD2d 828, 829 [2d Dept 1994]). Codefendants and plaintiff do not oppose this branch of Outfit's motion. Thus, this branch of Outfit's summary judgment motion is granted.

Outfit also moves to dismiss the cross claims for common-law and contractual indemnification, contribution, and breach of contract for failure to procure insurance. In support of that branch of its motion to dismiss the cross claims for contribution and common-law indemnification, Outfit argues that 56 West and BEC LLC had a nondelable duty to maintain the premises, including the parking lot where the subject accident allegedly occurred, that Impact had a contractual duty to ensure the safety of the premises, and that it (Outfit) did not owe plaintiff a duty of care.

Outfit has made a prima facie showing entitling it to summary judgment with respect to that branch of its motion to dismiss all claims for contribution because it has established that it did not owe a duty of care to the codefendants independent of its contractual obligations [to the extent the service invoice contained them] (Schultz v Bridgeport & Port Jefferson Steamboat Co., 68 AD3d 970, 972 [2d Dept 2009]).

Further, Outfit may be liable to the codefendants for common-law indemnification even in the absence of a duty running to plaintiff, if the injuries are attributable solely to the negligent performance or nonperformance of an action that was solely within the province of Outfit (Mitchell v Fiorino Landscape, 284 AD2d 313, 314 [2001]).

However, Outfit has made a prima facie showing with respect to that branch of its motion to dismiss all cross claims for common-law indemnification by demonstrating that plaintiff's injuries were not attributable to the negligence or nonperformance of an act that was solely within its province (Abramowitz v Home Depot USA, Inc., 79 AD3d 675, 677 [2d Dept 2010]). As noted above, the service invoice did not require Outfit to inspect or maintain the parking lot. In any event, Mr. St. Preux testified that while checking on the parking lot the day before the accident and on the day of the accident, he had not seen the pallets, nor did he see the pallets before the accident. He also testified that he did not know who owned the pallets or who had placed them at the accident location.

In opposition, 56 West and BEC LLC argue that they are entitled to contribution from Outfit based upon Outfit's possession and control of the parking lot on behalf of Impact, as well as Outfit and Impact's post accident conduct in removing the pallets. In particular, BEC LLC appears to argue that even assuming Outfit did not have contractual "safety obligations," it assumed these obligations, presumably because Mr. St. Preux testified that he walked around the parking lot during the "four days of this event," that he had "eyes everywhere," and that he was responsible for making sure the Center and the parking lot were safe and secure. In further opposition, Impact asserts that Outfit has failed to establish its entitlement to summary judgment dismissing the cross claims for contribution and common-law indemnification because it has [*14]failed to demonstrate that it is free of any negligence, and that plaintiff's injuries were not attributable to the nonperformance of an act that was solely within Outfit's province.

Codefendants, however, have failed to raise a material issue of fact that Outfit was negligent or that it launched a force or instrument of harm via any competent evidence. Thus, this branch of Outfit's motion is granted.

Outfit has also made a prima facie showing entitling it to dismissal of the cross claims for contractual indemnification and breach of contract for failure to procure insurance by demonstrating that the service invoice it provided to Impact does not contain provisions by which it agreed to indemnify the codefendants or to procure insurance on their behalf (Jamindar v Uniondale Union Free School Dist., 90 AD3d 612, 616 [2d Dept 2011]). The codefendants do not oppose this branch of Outfit's motion.

In summary, Impact's summary judgment (Motion Sequence No.5) is denied, and Outfit's summary judgment motion (Motion Sequence #4) is granted.

This constitutes the decision and order of the court.

ENTER:

_________________________

Carl J. Landicino

J.S.C. Footnotes

Footnote 1:In fact, he had never made complaints.

Footnote 2:56 West also argues that Impact has failed to establish its prima facie entitlement to summary judgment because Impact submitted six partial, unsigned, uncertified transcripts. 56 West makes this same argument with respect to Outfit. Where a party has demonstrated that it demanded executed copies of all deposition transcripts, and receives no response within 60 days, these transcripts "can be used as if fully signed" (Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d 45, 51 [2d Dept 2014]). Here, pursuant to CPLR 3116 (a), Impact has demonstrated in its reply that it demanded executed copies of all deposition transcripts from 56 West, BEC LLC, and plaintiff on September 21, 2017. There is no evidence in the record that these parties signed these transcripts under oath within 60 days. Thus, these transcripts may be used as if fully executed. Further, "the evidence demonstrating [Impact's] compliance with CPLR 3116 (a) [is] properly considered in reply because it was submitted in direct response to allegations raised for the first time in [] [56 West's] opposition papers" (id.). Moreover, since 56 West has not raised any challenge to the accuracy of the depositions to which it objects, "the lack of [] signature[s] [does] not render [these] deposition transcript[s] inadmissible" (id.). As for Outfit, it has demonstrated in its reply that in response to its combined demands, counsel for 56 West represented in its response that the disc attached as Exhibit A contained the "deposition transcripts from the party depositions." In this regard, Outfit states that the disc contained the same unsigned deposition transcripts of the parties conducted before Outfit had entered this action and were referenced as exhibits in Outfit's motion in chief. Given the foregoing, "submission of unsigned and some uncertified deposition transcripts constituted mere irregularities and, because no substantial right of any party was prejudiced," the court may disregard these defects and determine the motion on the merits (Hartman v Milbel Enters., Inc., 130 AD3d 978, 980 [2d Dept 2015]).

Footnote 3:As relevant here, plaintiffs' verified bill of particulars alleges that: "[d]efendants disregarded their legal duty to their customers, patrons, and/or invitees, including the plaintiff, as they negligently and carelessly controlled and maintained the above described premises by failing to remove the wooden pallets as they were a tripping hazard. The parking lot area where plaintiff Duane Stevens fell was negligently, carelessly and recklessly maintained as it was not cleared of debris including the wooden pallet. Defendants did not exercise reasonable care and/or diligence, inter alia, in the selection, engagement, training and employment of the employees on duty and supervising the premises during the aforementioned time" (emphasis added).