Murphy v Westchester One, LLC

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Murphy v Westchester One, LLC 2020 NY Slip Op 34557(U) September 25, 2020 Supreme Court, Westchester County Docket Number: 58550/2017 Judge: Sam D. Walker 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] WESTCHESTER COUNTY CLERK 10/02/2020 02:32 PM NYSCEF DOC. NO. 156 INDEX NO. 58550/2017 RECEIVED NYSCEF: 10/02/2020 the statutory To commence commence the statutory of right time right appeals as of for appeals time for you are (CPLR 5513[a]), 5513(a]), you copy advised serve a copy to serve advised to notice with notice of this order, with this order, of parties. of all parties. upon all entry, upon of entry, YORK STATE OF NEW SUPREME NEW YORK THE STATE COURT OF THE SUPREM E COURT WESTCH ESTER COUNTY OF WESTCHESTER COUNTY J.S.C. WALKER , J.S.C. PRESENT: : HON. SAM D. WALKER, HON. SAM PRESENT -----------------------------------------------------------------------------x -----------------------------------------------------------------------------x MURPHY, CHANDR A MURPHY, ..CHANDRA Plaintiff, Plaintiff, -against-against- ORDER & ORDER DECISION & DECISION Index 58550/20177 Index No. 58550/201 Motion Sequence Sequence 4 Motion AY SOUTH BROADW 44 SOUTH WESTCHESTER BROADWAY ONE, LLC and 44 WESTCH ESTER ONE, INC., LD WAKEFIE PROPERTY, CUSHMANN & WAKEFIELD Y, LLC, CUSHMA PROPERT PROPERT Y BCSP IV PROPERTY BEACON PARTNER S, BCSP CAPITAL PARTNERS, BEACON CAPITAL MANAGEMENT MENT LLC, MANAGE Defendants.s. Defendant ______________________________________________________ -------------------------------------x --------------x ---------------------------------------------------Y, LLC, AY PROPERT 44 SOUTH SOUTH BROADW BROADWAY PROPERTY, Third-Party Plaintiff, Third-Part y Plaintiff, -against-againstCUSHMAN WAKEFIE LD, INC., CUSHMAN & WAKEFIELD, Defendant. Third-Party Third-Part y Defendant. ------------------------x ------------- ------------- ------------- ------------- ------------- ------------- x ___________________ w Y, LLC, 44 SOUTH BROADWAY PROPERTY, AY PROPERT SOUTH BROADW Plaintiff, Second Third-Partyy Plaintiff, Second Third-Part -against-against- IES, INC ....,, TEMCO SERVICE INDUSTR INDUSTRIES,. TEMCO SERVICE Second Defendant.t. Third-Part y Defendan Second Third-Party __________________________________ ----------------- ·------------------ .-----x ---------------------\~------------------~------------------~-----x ------------- defendant 's the defendant's with the connectio n with The considered in connection were read and considered papers were following papers The following against cross-claim s against claims and cross-claims motion for order for summary judgment dismissing all claims judgment dismissing for summary for an order motion answer pursuant leave to amend n") leave it; granting Cushman Cushman & Wakefield Wakefield, , Inc. ("Cushma ("Cushman") amend its answer pursuant it; granting to CPLR 3025(b) 3025(b) to assert assert cross-claim cross-claimss against against Temco Temco Service Service Industries Industries, , Inc. ('Temco") ('Temco") to CPLR 1 of 8 [*FILED: 2] WESTCHESTER COUNTY CLERK 10/02/2020 02:32 PM NYSCEF DOC. NO. 156 INDEX NO. 58550/2017 -~ RECEIVED NYSCEF: 10/02/2020 and granting judgment pursuant granting summary summary judgment pursuant to CPLR CPLR 3212 3212 to Cushman Cushman on its cross-claims cross-claims against against Temco. Temco. Notice A-S Notice of Motion/Affirmation/Exhibits Motion/Affirmation/Exhibits A-S Memorandum Memorandum of Law in Support Support Affirmation in Partial Affirmation Partial Opposition/Exhibits Opposition/Exhibits A-C Reply Affirmation Reply Affirmation Procedural Procedural and Factual Factual Background Background The 2017, The plaintiff, plaintiff, Chandra Chandra Murphy Murphy ("Murphy"), ("Murphy"), commenced commenced this this action action on May May 31, 31,2017, against against the defendants defendants Westchester Westchester One, LLC and 44 South South Broadway Broadway Properties Properties LLC ("44 SBP"), 2016, when when SBP"), seeking seeking damages damages for alleged alleged injuries injuries sustained sustained on December December 5, 5,2016, she White Plains, she slipped slipped and fell at 44 S. Broadway, Broadway, White Plains, New New York. Murphy before trial ("EBT") when she Murphy testified testified at her her examination examination before ("EBT") that that she fell when entered within her office space at the New entered the printer printer room within office space New York York State State Department Department of Taxation Taxation and Finance, Finance, located located on the sixth floor floor of the subject subject premises. premises. Murphy Murphy testified testified that she had been been to the printer without incident that printer room multiple multiple times times after after lunch lunch without incident and did not further testified were wet wet see anything anything or feel anything anything on the floor. floor. Murphy Murphy further testified that that her her pants pants were to the touch see if there touch after after she she fell, but she did not look at the floor floor to see there was was water. water. Her coworkers workers rushed rushed into the printer printer room when when they they heard heard her her fall and Mildred Mildred Villalona Villalona ("Villalona"), ("Villalona"), a maintenance maintenance worker, worker, employed employed byTemco by Temco Service Service Industries, Industries, Inc. ("Temco"), ("Temco"), also also came came rushing rushing into the room, room, telling telling Murphy Murphy tQ t9 get get up. When When Murphy Murphy saw saw Villalona Villalona again in March March 2018, 2018, Villalona Villalona apologized apologized to her for for what happened. again what had happened. The Court Court (Everett, (Everett, J.) previously previously grante~ grante~ the plaintiff's plaintiff's motion motion for for leave leave to serve serve and The summons and amended amended verified verified complaint complaint to add Beacon Beacon Capital Capital file a supplemental supplemental summons Partners ("Beacon"), ("Beacon"), BCSP BCSP IV Property Property Management Management LLC, and Gushman Gushman as direct direct Partners 2 2 of 8 [*FILED: 3] WESTCHESTER COUNTY CLERK 10/02/2020 02:32 PM NYSCEF DOC. NO. 156 INDEX NO. 58550/2017 ~.J RECEIVED NYSCEF: 10/02/2020 defendants Jerome Montrone, Senior Vice President for defendants to the action. action. Jerome Montrone, SeniorVice President and asset asset manager manager for New York at Beacon, that 44 SBP is owned New York Beacon, testified testified that owned by BCP Fund Six, LLP, for which which Beacon Beacon is an investment investment advisor. advisor. Cushman Cushman was the property property manager manager at the time time of the alleged Temco was was the cleaning the time alleged incident incident and Temco cleaning subcontractor subcontractor hired hired by Cushman Cushman at the time of the alleged alleged incident. incident. On May 16, 2018, the defendant, 2018, the defendant, 44 SBP filed a third-party third-party complaint complaint against against Cushman third-party complaint against Cushman and on July July 10, 2018, 2018, 44 SBP filed a second second third-party complaint against Temco. The parties in the third-party actions executed executed a Stipulation Discontinuance third-party actions Stipulation of Discontinuance Temco. The parties dated dated August August 14, 2019 2019 as to Temco Temco and a Stipulation Stipulation of Discontinuance Discontinuance dated dated December December 6,2019, Cushman only only with regard to the third party complaint. complaint. 6, 2019, as to Cushman third party This judgment pursuant 3212, This Court Court granted granted 44 SBP's SBP's motion motion for summary summary judgment pursuant to CPLR CPLR 3212, to dismiss that 44 SBP established that it neither created dismiss the complaint complaint against against it, finding finding that established that neither created condition, nor had actual actual or constructive constructive notice notice of the condition condition that that caused caused Murphy's Murphy's the condition, injuries. The The Court Court also found found that expend any control control over injuries. that 44 SBP did not expend over the the management of of the the building building nor the janitorial services and was was essentially essentially an out out of janitorial services management possession owner/landlord owner/landlord and not liable liable for any defects. defects. possession Cushman also also filed a motion summary judgment leave to amend amend its answer, Cushman motion for for summary judgment and leave answer, which this Court address because because it was under under the mistaken mistaken belief belief that Cushman which this Court did not address that Cushman was longer a part part of the case Discontinuance. It also did not case due to the Stipulation Stipulation of Discontinuance. was no longer address part of 44 SBP's SBP's motion motion seeking seeking indemnification indemnification and status status as an additional additional address that that part insured for for the the same same reason. reason. The The Court Court now now addresses addresses Cushman's Cushman's motion. motion. insured 3 3 of 8 [*FILED: 4] WESTCHESTER COUNTY CLERK 10/02/2020 02:32 PM NYSCEF DOC. NO. 156 INDEX NO. 58550/2017 ~I RECEIVED NYSCEF: 10/02/2020 Cushman argues argues that that it did not cause cause or create create the alleged alleged hazardous hazardous condition condition nor Cushman have constructive constructive notice notice of of it. Cushman Cushman argues argues that that Villalona Villalona was was trained trained to place place a did it have wet floor floor sign down down prior prior to mopping mopping the the floors floors and chose chose to ignore ignore her her training training on the the day day wet of the the incident, incident, which which happened happened moments moments after after Villalona Villalona failed failed to place place the the wet wet floor floor sign of floor. Villalona Villalona argues argues that that it had no notice notice that that Villalona Villalona failed failed to put put the the sign down down on the floor. could not have have caused caused nor created created the the alleged alleged dangerous dangerous condition. condition. and could Cushman also also argue·s argue's that that Cushman Cushman did not owe owe a duty duty of of care care to the the plaintiff, plaintiff, a Cushman non-contracting third-party third-party and none none of of the exceptions exceptions apply apply to this this action, action, because because non-contracting Cushman did not not launch launch a force force or instrument instrument of of harm, harm, the the plaintiff plaintiff did not not detrimentally detrimentally Cushman the continuing continuing performance performance of of Cushman's Cushman's duties duties and Cushman Cushman did not entirely entirely rely on the displace 44 SBP SSP or Temco Temco in the the duty duty to maintain maintain the premises premises safely. safely. displace With regard regard to the the cross-motion cross-motion by 44 SBP SSP for for breach breach of of contract contract and contractual contractual With indemnification, Cushman Cushman argues argues that that the indemnification indemnification provision provision of of the the contract contract indemnification, between it and 44 SBP SSP is only only triggered triggered upon upon a showing showing of of gross gross negligence negligence and in this between Cushman was was neither neither negligent negligent nor grossly grossly negligent. negligent. Cushman Cushman also also asserts asserts that that it case, Cushman procure insurance insurance pursuant pursuant to its management management agreement agreement because because its did not fail to procure employees were not grossly employees were grossly negligent. negligent. Cushman Cushman further further asserts asserts that that it was was not not negligent negligent way that that caused caused or contributed contributed to the plaintiff's plaintiff's claimed claimed accident accident and therefore, therefore, 44 in any way SSP is not not entitled entitled to contribution contribution nor common common law indemnification. indemnification. SBP With regard regard to its cross-motion cross-motion against against Temco Temco for for common common law indemnification indemnification and With contribution, Cushman Cushman argues argues that that it did not have actual actual nor nor constructive constructive notice notice of the contribution, hazardous condition condition and did not owe the plaintiff plaintiff a duty duty of care, but that Temco admitted admitted hazardous that Temco 4 4 of 8 [*FILED: 5] WESTCHESTER COUNTY CLERK 10/02/2020 02:32 PM NYSCEF DOC. NO. 156 INDEX NO. 58550/2017 RECEIVED NYSCEF: 10/02/2020 responsibility for for the plaintiff's plaintiff's alleged alleged injuries. injuries. Therefore, Therefore, Cushman Cushman seeks seeks to amend amend its responsibility answer and file cross-claims cross-claims against against Temco. Temco. answer opposition, Murphy, Murphy, by her attorney, attorney, argues argues that that Cushman Cushman was was 44 SBP's SSP's agent agent In opposition, vis-a-vis the work work to be performed performed under under the contract contract with Temco Temco and since since Temco Temco created created vis-a-vis condition, so .questions questions of notice notice are irrelevant. irrelevant. Murphy's Murphy's attorney attorney argues argues that that there there the condition, was no wet wet floor floor sign and the water water on the floor floor was was not open open and obvious. obvious. was Cushman asserts asserts that that the plaintiff's plaintiff's papers papers do not not make make any argument argument in In reply, Cushman opposition to Cushman's Cushman's motion motion for for summary summary judgment argues that that Cushman Cushman opposition judgment and in fact, argues cannot be held liable liable for for the claimed claimed accident. accident. Instead, Instead, the plaintiff plaintiff argues argues that that Temco Temco is cannot negligent and that that 44 SBP SSP is vicariously vicariously liable. Cushman Cushman also also argues argues that that since since no party party negligent opposed those those branches branches of its motion motion seeking seeking leave leave to amend amend its answer answer pursuant pursuant to has opposed CPLR 3025[b], 3025[b], to assert assert cross-claims cross-claims against against Temco, Temco, and g~anting summary summary judgment CPLR judgment pursuant to CPLR CPLR 3212 3212 to Cushman Cushman on its cross-claims cross-claims against against Temco, Temco, those those branches branches pursuant motion should should be granted. granted. of its motion Discussion Discussion A party party on a motion motion for for summary summary judgment must assemble assemble affirmative affirmative proof proof to judgment must establish judgment as a matter establish his entitlement entitlement to judgment matter of of law. (Zuckerman (Zuckerman v City City of of N. Y., Y., 49 [1980]). "[T]he "[T]he proponent proponent of a summary summary judgment motion must must make make a prima prima judgment motion NY2d 557 [1980]). facie showing showing of entitlement entitlement to judgment matter of law, tendering tendering sufficient sufficient evidence evidence facie judgment as a matter demonstrate the absence absence of any material material issues issues of fact," fact," (Alvarez (Alvarez v Prospect Prospect Hosp., Hosp., 68 to demonstrate [1986]). Only Only when showing has been been made made must must the opposing opposing NY2d 320, 324 [1986]). when such a showing party set forth forth evidentiary evidentiary proof proof establishing establishing the existence existence of a material material issue issue offact. offact. (See party 5 5 of 8 [*FILED: 6] WESTCHESTER COUNTY CLERK 10/02/2020 02:32 PM NYSCEF DOC. NO. 156 INDEX NO. 58550/2017 RECEIVED NYSCEF: 10/02/2020 Winegrad v New New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). [1985]). The The burden burden shifts shifts e.g. Winegrad party opposing opposing the motion motion to show show the existence existence of material material issues issues of fact fact by to the party producing evidentiary evidentiary proof, proof, in admissible admissible form, form, in support support of their their position. position. producing slip-and-fall case, a defendant defendant moving moving for summary summary judgment the initial initial In a slip-and-fall judgment has the burden of of establishing, establishing, prima prima facie, facie, that that it neither neither created created the dangerous dangerous condition condition nor had , burden c actual or constructive constructive notice notice of its existence existence for for a sufficient sufficient length length of time time to discover discover and actual remedy it, ((Sawicki GameStop Corp., 106 AD 3d 979; Armijos Vrettos Realty Realty Corp., 106 Sawicki v GameStop AD3d Armijos v Vrettos remedy AD 3d 847,847; 847, 847; Freiserv Freiserv Stop Stop & Shop Shop Supermarket Supermarket Co., LLC, 84 AD3d 1307, 1308). 1308). AD3d AD3d 1307, viewing the evidence evidence in a light most most favorable favorable to the the non-moving non-moving party party Upon viewing (Pearson v Dix McBride, McBride, LLC, 63 AD3d Dept 2009]), 2009]), and upon upon bestowing bestowing the (Pearson AD3d 895, 895 [2d Dept benefit of every every reasonable reasonable inference inference to that that party party (Rizzo (Rizzo v Lincoln Lincoln Diner Diner Corp., Corp. ,215 benefit 215 AD2d AD2d Dept 1995]), 1995]), the Court Court finds finds that that Cushman Cushman has met met its burden burden and has made made 546, 546 [2d Dept prima facie facie showing showing of entitlement entitlement to judgment matter of law against against the plaintiff plaintiff .... judgment as a matter a prima The Court Court finds finds that that Cushman Cushman has established established that that it neither neither created created the condition, condition, The actual or constructive constructive notice notice of the condition condition that that caused caused Murphy's Murphy's injuries. injuries. nor had actual Further, Cushman Cushman did not owe a duty duty of care care to the plaintiff plaintiff and none none of the exceptions exceptions to Further, duty requirement, requirement, apply apply to this this action, action, since since Cushman Cushman did not launch launch a force force or the duty instrument of harm, harm, the plaintiff plaintiff did not detrimentally detrimentally rely on the continuing continuing performance performance instrument Cushman's duties duties and Cushman Cushman did not entirely entirely displace displace 44 SBP SSP nor nor Temco Temco in the duty duty of Cushman's maintain the premises premises safely. safely. Temco Temco was company responsible responsible for for cleaning cleaning the was the company to maintain building and the company company that that hired Villalona, Villalona, who who mopped mopped the the floor floor and allegedly allegedly created created building 6 6 of 8 [*FILED: 7] WESTCHESTER COUNTY CLERK 10/02/2020 02:32 PM NYSCEF DOC. NO. 156 INDEX NO. 58550/2017 RECEIVED NYSCEF: 10/02/2020 the condition. Therefore, that summary judgment judgment condition. Therefore, that part of Cushman's Cushman's motion motion seeking seeking summary dismissing dismissing the complaint complaint and all cross-claims cross-claims against against it, is granted. granted. Cushman pursuant to CPLR Cushman also also seeks seeks to amend amend its answer, answer, pursuant CPLR 3025(b), 3025(b), to assert assert cross-claims cross-claims against against Temco. Temco. Under Under CPLR CPLR 3025(b), 3025(b), leave leave to amend amend a pleading pleading shall shall be freely the adverse amend a freely granted granted absent absent prejudice prejudice to the adverse party. On a motion motion for for leave leave to amend pleading where the pleading before before trial, the opposing opposing party party cannot cannot successfully successfully claim claim prejudice prejudice where proposed amendment amendment would would not change change the fundamental fundamental nature nature of the the allegations allegations in the proposed AD2d 381 [2d Dept where the original original pleading pleading (Pepe (Pepe v Tannenbaum, Tannenbaum, 262 AD2d Dept 1999]), 1999]), or where opposing party party has had full knowledge knowledge of the the facts facts (Pejcinovic (Pejcinovic v City City of of New New York, 258 opposing AD2d Dept 1999]) 1999]) and an opportunity opportunity to present present an opposing opposing theory theory of the the case AD2d 365 [1st Dept allowed. (Stow (Stow v City City of of New New York, 122 AD2d Dept 1986]). 1986]). is allowed. AD2d 45 [2d Dept although there there was no opposition, opposition, this this part of Cushman's Cushman's motion motion is denied, denied, Here, although since Temco Temco is no longer longer a party party to the the action action and thus, thus, Cushman Cushman cannot cannot assert assert crosscrosssince claims against against it. Additionally, Stipulation of Discontinuance Discontinuance has been been filed with regard claims Additionally, a Stipulation third-party complaint complaint against against Temco. Therefore, that that part part of Cushman's Cushman's motion motion to the third-party Temco. Therefore, seeking to amend amend its answer answer to assert assert cross-claims against Temco Temco and for for a grant grant of seeking cross-claims against summary judgment against Temco, Temco, is denied. denied. summary judgment against Accordingly, based on the foregoing, foregoing, it is Accordingly, based ORDERED that that the part of the motion motion seeking seeking an order order granting granting summary summary judgment ORDERED judgment dismiss all claims claims against against Cushman, Cushman, is granted; granted; and it is further further to dismiss 7 7 of 8 [*FILED: 8] WESTCHESTER COUNTY CLERK 10/02/2020 02:32 PM NYSCEF DOC. NO. 156 INDEX NO. 58550/2017 RECEIVED NYSCEF: 10/02/2020 ORDERED ORDERED that that the the part part of of the the motion motion seeking seeking an order order granting granting leave leave to amend amend judgment answer to assert assert cross-claims cross-claims against against Temco Temco and for for a grant grant of of summary summary judgment its answer against against Temco, Temco, is denied. denied. The The foregoing foregoing constitutes constitutes the the Opinion, Opinion, Decision Decision and Order Order of of the the Court. Court. Dated: White White Plains, Plains, New New York York Dated: September 25, 2020 2020 September HON. SAM SAM D. WALKER, WALKER, J.S.C. J.S.C. ,) '1 8 8 of 8

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