Gallipoli v GlobalFoundries, Inc.

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Gallipoli v GlobalFoundries, Inc. 2021 NY Slip Op 32913(U) June 3, 2021 Supreme Court, Saratoga County Docket Number: Index No. 20183476 Judge: Dianne N. Freestone 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] SARATOGA COUNTY CLERK 06/03/2021 01:10 PM NYSCEF DOC. NO. 62 INDEX NO. 20183476 RECEIVED NYSCEF: 06/03/2021 STATE OF NEW YORK SUPREME COURT COUNTY OF SARATOGA JOSEPH GALLIPOLI, ,DECISION & ORDER Index No.: 20183476 RJI No.: 45-1-2019-0374 Plaintiff, -againstGLOBALFOUNDRIES, INC. a/k/a GLOBALFOUNDRIES U.S., INC. and THE GALLIVAN CORPORATION, Defendants.· PRESENT: HON. DIANNE N. FREESTONE Supreme Court Justice APPEARANCES: David I. Iversen, Esq. E. Stewart Jones Hacker Norah M. Murphy, Esq. Law Office of Theresa J. Puleo Attorney for Plaintiff Attorney for Defendant GlobalFoundries, Inc. Troy, New York Hartford, Connecticut Nicholas J. Berwick, Esq. Amhuty, Demers & McManus, Esqs. Attorney for Defendant Gallivan Corporation Clifton Park, New York Plaintiff Joseph Gallipoli commenced this personal injury action on October 23, 2018 by filing a summons and complaint in the Saratoga County Clerk's Office. 1 On November 26, 2018, plaintiff filed an amended summons and complaint. Thereafter, defendant The Gallivan Corporation (hereinafter individually referred to as "Gallivan") served an answer to the amended It is worth noting that, on or about January 2, 2020, this matter was reassigned from the Hon. Thomas D. Nolan, Jr. to this Court pursuant to the directives of the Administrative Judge. Further, on or about February 9, 2021, this matter was converted to electronic filing (~ NYSCEF Document No. 2). 1 1 of 9 [*FILED: 2] SARATOGA COUNTY CLERK 06/03/2021 01:10 PM NYSCEF DOC. NO. 62 INDEX NO. 20183476 RECEIVED NYSCEF: 06/03/2021 complaint, . which interposed five affirmative defenses and a cross claim against defendant GlobalFoundries, lnc. a/k/a GlobalFoundries ·u.s. Inc. (hereinafter individually referred to as "GlobalFoundries'} Subsequently, GlobalFoundries served an answer to the complaint asserting various affirmative defenses and a cross claim against Gallivan .. Al approximately 12:00 p.m. on. December 22, 2016, plaintiff, an employee of a subcontractor at GlobalFoundries, reportedly slipped and fell while exiting a van at the GlobalFoundries plant situated in the Town of Malta, County of Saratoga. GlobalFoundries entered into a general seryices agreement with Gallivan. GlobalFoundries and Gallivan entered into a separate statement of work, subject to the terms and conditions of the general services contract, for snow removal administration and landscaping. The statement of work provided for "snow plowing and removal for the various site roadways, parking lots and walk way areas within the GLOBALFOUNDRIES site as detailed inthe ... 'SnowRemoval' Map" during the relevant time period at issue. Plaintiff brought this action against GlobalFoundries and Gallivan (hereinafter collectively referred to as "defendants") seeking damages for his injuries. Plaintiff contends that defendants negligently maintained the parking area where plaintiff fell. Following joinder of issue and discovery, Gallivan moved for. summary judgment dismissing plaintiffs' complaint together with any cross claims contending that plaintiff fell in an area where they had no duty to maintain (see NYSCEF Document Nos. 31 - 48). Jn support of thdr motion for summary judgment, Gallivan proffered, inter alia, the pleadings, deposition testimony, photographs and the general services agreement and 'related Statement of Work for Snow removal. Plaintiff opposed Gallivan:s motion by attorney's affirmation with supporting exhibits A through H(see NYSGEF Document Nos. 51-60). On May 10, 2021, Gallivan submitted an attorney's affirmation in reply (see NYSCEF DocumentNo. 61). 2 2 of 9 [*FILED: 3] SARATOGA COUNTY CLERK 06/03/2021 01:10 PM NYSCEF DOC. NO. 62 INDEX NO. 20183476 RECEIVED NYSCEF: 06/03/2021 The,proponent of a summaryjudgmentmotion is obligated to make a prima facie,showing of entitlement to judgment as a matter of law by tendering admissible evidence demonstrating the absence of a material question of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Pullman v Silverman, 28 NY3d 1060, 1062 [2016]; AndrewR. Mancini Associates, Inc. v Mary Imogene Bassett Hosp., 8OAD3d 933, 935 [3d Dept2011]; Smith v Allen, 124 AD3d 1128 [3d Dept 2015]; Freitag v Village of Potsdrun, '155 AD3d 1227;]229 [3d Dept 2017]). If the moving party meets its initial burden, the burden then shifts to the nonmoving party to produce evidence sufficientto demonstrate a material issue of fact to avoid summaryjudgment (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Stonehill Capital Mgt., LLC vBank of the W., 28 NY3d 439,448 [2016]; U.W. Marx, Inc. vKoko Contr, Inc., 97 AD3d 893, 894 [3dDept 2012]; Hicks v Berkshire Farm Ctr. & Servs. for Youth, 123 AD3d 1319 [3d Dept 2014 ]). It is well settled that a court reviewing a motion for summary judgmentmustview the evidence in the light most favorable to the nonmoving party (see Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]~ Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP; 26 NY3d 40,, 49 [2015]; Winne v Town ofDuanesburg. 86 AD3d 779,780 [3d Dept 2011]; Marra v Hughes, 123 AD3d 1307 [3d Dept 2014]). A court "'may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned"' (Rock-Wright v O'Connor, 172 AD3d 1507, 1509 [3d Dept 2019], quoting Glick & Dolleck vTriPac Export Corp.,22 NY2d 439,441 [1968]). First, with regard to the Gallivan's motion seeking summary judgment dismissing plaintiffs amended complaint, Gallivan asserts that thereis no cognizable theory under which it can be held liable since there is no showing that Gallivan had a contractual relationship with ,Plaintiff. Gallivan contends that plaintiff "feH in a grassy area which Gallivan had no duty to 3 3 of 9 [*FILED: 4] SARATOGA COUNTY CLERK 06/03/2021 01:10 PM NYSCEF DOC. NO. 62 INDEX NO. 20183476 RECEIVED NYSCEF: 06/03/2021 maintain." Gallivan further contends that it did not owe a duty of care to plaintiff and that1 under the seminal case ofEspinal v Melville Snow Contrs. (?8 NY2d 136 [2002]), 'there is no basis to hold it liable for plaintiffs injuries. Specifically; Gallivan maintains that it "did not negligently create or exacerbate the dangerous condition which allegedly caused plaintiffs injuries ...., plaintiff did not detrimentallyrely on Gallivan's performance of any alleged duty, and the contract did not displace [GlobalFoundries] duty to maintain their premises.'? In opposition, plaintiff argues there are questions of fact; as "to what material was under the ice on which plaintiff fell,'' whether Gallivan created or exacerbated a dangerous condition, whether Gallivan displaced GlobalFoundries duty to maintain the premises? and whether plaintiff detrimentally relied on Gallivan performing its snow removal duties. A threshold question in this negligence action is whether Gallivan, as an alleged tortfeasor, owed a duty of care to plaintiff (see Luby v Rotterdam Sq .• L.P., 47 AD3d 1053, 1054 [3dDept 2008]; Sciscente v Lill Overhead Doors. Inc., 78 AD3d 1300, 1301 [3d Dept 2010]; Durrans v Harrison & Burrowes Bridge Constructors, Inc., 128 AD3d 1136; 1137 [3d Dept 2015]) .. ''Generally speaking, a limited contractual agreement to provide snow removal services -standing alone-· will not give rise to tori liability in favor;of a noncontracting injured third party" {Baker v'Buckpitt, 99 AD3dl097,-~ 1098 [3d Dept 2012];. see Jubie v Emerson Mgt. Enterprises, LLC, ·189 AD3d 2030 [3d Dept 2020] Belmonte v Guilderland Assoc., LLC, 112 AD3d 1128, 1129 [3d Dept 2013]; Hannigan v Staples, Inc., 137 AD3d 1546, 1548 [3d Dept 2016]). However, the Court of Appeals has recognized three exceptions to the aforementioned general rule and found that a snow removal contractor "may be said .to have assumed a duty of care to third persons: (I) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued 4 4 of 9 [*FILED: 5] SARATOGA COUNTY CLERK 06/03/2021 01:10 PM NYSCEF DOC. NO. 62 INDEX NO. 20183476 RECEIVED NYSCEF: 06/03/2021 ·performance ofthe contracting party's duties; and (3) where the contracting party has entirely displaced the otherparty 1 s duty to maintain the premises safely" (Dunham v Ketco, Inc;. 135AD3d 1032, 1033-1034 [3d Dept 2016L quoting Espinal v Melville Snow Contrs .• 98 NY2d at 140; see Kelleyv Schneck, 106 AD3d l 175~ 1179 [3d Dept2013]; Billera v Merritt Const., Inc.,J39 AD3d 52, 58 [3d Dept 2016] ; Santos vDeanco Servs., Inc., 142 AD3d 137, 140 [2d Dept 2016]). With regard to the third Espinal . exception~ GlobalFoundries entered into a three-year service contract with Gallivan. for the property at issue effective October 2, 2015 through September 30, 2018. The snow removal portion of the agreement indicated that Gallivan agreed to provide all necessary labor, supervision, materials and equipment for snow/ice plowing, snowremoval and sanding as required. Gallivan agreed to be responsible for ''plowing/clearing snow/ice from roads, parking lots,:building entrances, building loading dock areas including steps and all walkways." Gallivan further.agreed that "[a]s soon as the snowfall begins salting and plowing begins, however, as stated below, [Gallivan] will be on call at all times and will respond as needed in the event . small . snowfall or icing event(s) create. hazardous road and/or lot conditions. Response to icing events will be immediate.1 there is no amount trigger.'' Gallivan also agreed to be "on call at all times during [the] winter season" and to be responsible for monitoring the weather conditions and to ''self-respond." ,Brendan Gallivan, owner of Gallivan, testified that his company took care ofthe ground maintenance in the summer and the snow removal in the winter at the GlobalFoundries facility in Malta. Mr. Gallivan testified that Gallivan had ''a facility ... just outside.the ·gates [and] pretty much [was] there around the clock during any anticipated events.·~ Mr. Gallivan further elaborated.that Gallivan was "there every day, just about every day." Mr. Gallivan ·agreed that "Gallivan Corporation was responsible for: keeping track of the weather and.if there was anticipated precipitation [Gallivan] would be onsite.'1 Mr. Gallivan testified tha(''assuming there was [not] any fenced-in construction areas, if 5 5 of 9 [*FILED: 6] SARATOGA COUNTY CLERK 06/03/2021 01:10 PM NYSCEF DOC. NO. 62 INDEX NO. 20183476 RECEIVED NYSCEF: 06/03/2021 there was pavement, [Gallivan] serviced it." Mr. Gallivan testified that he did not recall any times when GlobalFoundries had to contact Gallivan to come to the site for snow and ice removal. Mr. Gallivan testified that Gallivan was physically on-site on the date of the accident Mr. Gallivan further testified that Gallivan "had so many people on-site" and that they were in "most of the areas at all times.n Mr. Gallivan testified that Gallivan's people on-site were there ''around the clock" and constantly drove around the property to address any concerns that were pointed out by GlobalFoundries. James Mulligan, the director of environmental health, safety and security at GlobalFoundries, testified that itwas his understanding that "as soon as there [was] precipitation [in the form of snow, ice and sleet] accumulating on the surfaces., Gallivan was on-site." Based upon the terms of the contract at issue and the deposition testimony proffered herein, the Court finds that "there is an issue of fact [as to] whether [Gallivan's] contract with [GlobalFoundries] was so ~comprehensive and exclusive' [that it] entirely displaced [Gallivan's] duty to maintain the premises safely'' (Musilli v Kohler Co., 50 AD3d 1600, 1601 [4th Dept 2008], quoting Espinal v Melville Snow Contrs.,.98 NY2d at 140, accord Palka v Servicemaster Mgt. Services Corp., 83 NY2d $79,588 [1994]; see Garcia v Mack-Cali Realty Corp., 52 AD3d420, 421 [1st Dept 2008]). Furthermore, the Court finds that Gallivan's motion for summary judgment dismissing the amended complaint against it must also be denied since ''[t]here is anissue of fact on the record before [the Court] concerning the precise location where plaintiff fell" (Meyers-Kratt v Keem, 64 AD3<l 1172, 1173 [4thDept2009];seeMachtvJ.S. Cinemas.Inc., 18AD3d 1102, 1103 [3dDept 2005][''Con}lictingversions of the accident's location must be resolved byajury~']). In the case at bar, plaintiff testified that? on the morning of the incident, he rode a shuttle and was dropped off by door 7 at the FAB 8 building. Plaintiff testified that there. was''a little bit of snow on the ground" and that it had not been shoveled or cleared. At approximately 10:00 a.m., plaintiff 6 6 of 9 [*FILED: 7] SARATOGA COUNTY CLERK 06/03/2021 01:10 PM NYSCEF DOC. NO. 62 INDEX NO. 20183476 RECEIVED NYSCEF: 06/03/2021 testified that he then needed to go back outside to go to an FPI trailer "to do something on the computer." Plaintiff testified that Justin Berg, another pipefitter, transported him to the trailer in a van. Plaintiff testified that, after he completed said work, Mr. Berg drove the van back to the FAB 8 building and parked perpendicular to the building in the area between door 7 and door 9. Plaintiff testified that the surface near where Mr. Berg parked was made up of"blacktop, concrete and stones." Plaintiff further testified that he believed the surface where the van pulled in and came to a stop "was blacktop." Plaintiff testified thatthere were tire tracks and footmarks and "a dusting of snow on the ground." Plaintiff testified that he had witnessed snow within an hour of his fall and that there were "flurries all day on and off." Plaintiff testified that Mr. Berg parked and that they "both got out of the vehicle, walked towards the back of the vehicle, and [then plaintiff] was laying on the ground." Plaintiff testified that it happened "super fast" and that he "slipped" when he "stepped on ice." Mulligan testified that the location where plaintiff fell, as specified in the incident report, was comprised of "gravel and grass." Mr. Gallivan was unable to identify or observe "grass or gravel" in the picture taken as part of the incident report depicting the general location of the fall. Joseph Ralph Walsh, Jr., a site safety officer employed by FPI Mechanical a subcontractor at GlobalFoundries, testified that plaintiff was employed by FPI Mechanical. Walsh testified that he was the on-site safety supervisor for FPI Mechanical at the time of plaintiffs incident. Walsh testified that he completed the GlobalFoundries initial on-site accident report and took several pictures at the time of the subject incident. Walsh testified that "there was ice around [the van] the day of the incident." Walsh testified that the van was parked on snow and ice and that he could not tell what material was under the snow and ice it was parked on. Walsh further testified that, although there are grassy areas between stairwell seven and stairwell nine, he did not know if the subject van was parked on top of grass. Viewing this evidence 7 7 of 9 [*FILED: 8] SARATOGA COUNTY CLERK 06/03/2021 01:10 PM INDEX NO. 20183476 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 06/03/2021 in the light most favorable to plaintiff; as the nonmoving party~ the Courtfinds that Gallivan failed to conclusively establish that it did not owe a duty to plaintiff (see Prusky v McCarty, 126 AD3d 1171, 1172 [3d Dept 2015]). Likewise, the Court finds that Gallivan's motion to dismiss Globa1Foundries cross claim forindemnification must be denied. ''Indemnification is the rightto complete reimbursement for a liability imposed bylaw" (I 'Warren's Negligence in the New York Courts§ 8.01 [2020]). ''A right of indemnification may be created by an express agreement between the ,parties, or it may arise by operation of law as an i~plied, or common law, rightto indemnity" (Id.). "[A] party's right to contractual indemnification depends upon the specific language of the relevant contract" (Morris v Home Depot USA, 152 AD3d 669, 672 [2d Dept 2017]). "The promise to indemnify should not be. found unless it can be clearly implied from the language,and purpose of the entire agreement and the surrounding facts and circumstances'' (Bleich v Metropolitan MgL LLC, 132 AD3d 933,934 [2d Dept2015]). Gallivan tendered a copy of the parties' agreement which states that "[Gallivan] will indemnify, defend, and hold [GlobalFoundries] and its subsidiaries, affiliates, customers, agents, officers, directors and employees hannless fro·m and against all claims, damages, losses and reasonable expenses ... to the extent arising out of or resulting in whole or in part from (A) any breach of this agreement by [Gallivan], (b) Any claim that services or work product provided hereunder or the use thereof infringe a third party patent (all claim types), copyright, trademark,, trade secret, or other intellectual property right, or(C) any negligent act or omission of any [Gallivan] employee, agent~ or subcontractor." Gallivan claims that the alleged incident did not arise out of GaUivan's contract or performance thereof since. "Gallivan had no duty to remove snow and ice. or salt the area where the fall occurred.'' As stated above, the Court has found that there is a question of fact concerning the :precise location where plaintiff fell. Furthermore, the Court finds there is a tdable issue of fact as to whether Gallivan was negligent in the performance of the snow removal contract (see Payton v 8 8 of 9 [*FILED: 9] SARATOGA COUNTY CLERK 06/03/2021 01:10 PM NYSCEF DOC. NO. 62 INDEX NO. 20183476 RECEIVED NYSCEF: 06/03/2021 5391 Tr. Rd., L(C, 107 AD3d 1461, 1462 [4th Dept 2013]; Hannigan v Staples. Inc., 137 AD3d 1546, 1550 [3d Dept 2016]). Based on the foregoing, Gallivan' s motion for summary judgment is denied in its entirety; without costs: The Court is hereby uploading the original Decision and Order.into the NYSCEF system for filing and entry by the County Clerk. Counsel for plaintiff is still responsible for serving notice of entry of this Decision and Order in accordance with the Local Protocols for Electronic Filing for Saratoga County. Signed this 3rd day of June 2021, at Saratoga Springs, New York. U,\~J.~ HON. DIANNE N. FREESTONE Supreme Court Justice ENTER 9 9 of 9

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