Summary
finding material question of fact existed as to whether contractor created or increased the hazardous icy condition by failing to adequately sand and salt
Summary of this case from Haskin v. United States, Andifred Realty Corp.Opinion
2014-02-6
Robert JENKINS, Plaintiff–Respondent, v. The RELATED COMPANIES, L.P., et al., Defendants–Respondents, W5 Group, LLC, doing business as Waldorf Demolition, Defendant–Appellant.
Ken Maguire Associates, PLLC, Garden City (Mary Ellen O'Brien of counsel), for appellant. Sacks & Sacks, LLP, New York (Scott N. Singer of counsel), for Robert Jenkins, respondent.
Ken Maguire Associates, PLLC, Garden City (Mary Ellen O'Brien of counsel), for appellant. Sacks & Sacks, LLP, New York (Scott N. Singer of counsel), for Robert Jenkins, respondent.
London Fischer, LLP, New York (Michael J. Carro of counsel), for The Related Companies, L.P., 42nd and 10th Associates, L.L.C. and Tishman Construction Corporation of N.Y., respondents.
GONZALEZ, P.J., ANDRIAS, SAXE, RICHTER, CLARK, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered June 7, 2013, which, insofar as appealed from as limited by the briefs, denied the motion of defendant W5 Group, LLC d/b/a Waldorf Demolition (Waldorf) for summary judgment dismissing the complaint as against it, and granted the cross motionof defendants The Related Companies, L.P., 42nd and 10th Associates, LLC, and Tishman Construction Corporation (collectively Construction Defendants) for summary judgment on their contractual indemnification claim against Waldorf, unanimously affirmed, without costs.
On December 28, 2010, plaintiff, a glazier for a nonparty subcontractor, slipped and fell on ice while walking on an outdoor setback of a building under construction. The Construction Defendants included the owner of the premises, and the general contractor and construction manager on the project. Defendant Waldorf was the general cleanup contractor pursuant to a contract, and had agreed to provide additional “blizzard storm snow removal” services in response to a blizzard that occurred between December 26, 2010 and December 28, 2010.
Waldorf's motion for summary judgment was properly denied as the record presents a triable issue of fact as to whether Waldorf owed plaintiff a duty of care by having “launched a force or instrument of harm” in failing to exercise reasonable care in the performance of its snow and ice removal duties (Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 141, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] [internal quotation marks omitted] ). The evidence, including photographs and videos taken at the scene of the accident showing the icy condition and deposition testimony that there was no sand or salt in the area where plaintiff fell, raises questions as to whether Waldorf had adequately salted the pathway, and therefore, whether it created or exacerbated the hazardous ice condition ( see Ramirez v. BRI Realty, 2 A.D.3d 369, 768 N.Y.S.2d 821 [1st Dept. 2003]; Figueroa v. Lazarus Burman Assoc., 269 A.D.2d 215, 703 N.Y.S.2d 113 [1st Dept. 2000] ).
The motion court properly granted the Construction Defendants' cross motion for summary judgment on their contractual indemnification claim against Waldorf. The parties' contract contains a broad indemnification provision and does not require a showing of negligence on Waldorf's part. Moreover, given the lack of evidence of active negligence on the part of the Construction Defendants, they are entitled to full, not conditional, indemnification ( see Fiorentino v. Atlas Park LLC, 95 A.D.3d 424, 944 N.Y.S.2d 60 [1st Dept. 2102]; cf. Cuomo v. 53rd and 2nd Associates, LLC, 111 A.D.3d 548, 975 N.Y.S.2d 53 [1st Dept. 2013] ).