Opinion
311 CA 17–01726
04-27-2018
Christine CHAMBERLAIN and Todd Chamberlain, Plaintiffs–Respondents–Appellants, v. The CHURCH OF THE HOLY FAMILY AND IMMACULATE HEART CENTRAL SCHOOLS, Defendants–Appellants–Respondents. The Church of the Holy Family and Immaculate Heart Central Schools, Third–Party Plaintiffs–Appellants–Respondents, v. Swbg–Wholesale, Inc., Third–Party Defendant–Respondent–Appellant.
FISCHER, BESSETTE, MULDOWNEY & MCARDLE, LLP, MALONE (ROBERT R. LAWYER, III, OF COUNSEL), FOR DEFENDANTS–APPELLANTS–RESPONDENTS AND THIRD–PARTY PLAINTIFFS–APPELLANTS–RESPONDENTS. CONWAY & KIRBY, PLLC, DELMAR (ANDREW W. KIRBY OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS–APPELLANTS. SHANTZ & BELKIN, LATHAM, NAPIERSKI, VANDENBURGH, NAPIERSKI & O'CONNOR, LLP, ALBANY (KIMBERLY E. KENEALY OF COUNSEL), FOR THIRD–PARTY DEFENDANT–RESPONDENT–APPELLANT.
FISCHER, BESSETTE, MULDOWNEY & MCARDLE, LLP, MALONE (ROBERT R. LAWYER, III, OF COUNSEL), FOR DEFENDANTS–APPELLANTS–RESPONDENTS AND THIRD–PARTY PLAINTIFFS–APPELLANTS–RESPONDENTS.
CONWAY & KIRBY, PLLC, DELMAR (ANDREW W. KIRBY OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS–APPELLANTS.
SHANTZ & BELKIN, LATHAM, NAPIERSKI, VANDENBURGH, NAPIERSKI & O'CONNOR, LLP, ALBANY (KIMBERLY E. KENEALY OF COUNSEL), FOR THIRD–PARTY DEFENDANT–RESPONDENT–APPELLANT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum:
Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Christine Chamberlain (plaintiff) when she slipped and fell on ice and snow in a paved area outside property leased by defendant-third-party plaintiff Immaculate Heart Central Schools (School) from defendant-third-party plaintiff The Church of the Holy Family (Church; collectively, defendants). Defendants then commenced a third-party action against third-party defendant, SWBG–Wholesale, Inc. (SWBG), which had entered into a contract with the Church to plow the paved areas at the School.On the day of her accident, plaintiff arrived at the School and drove her vehicle through a parking lot to an access road closer to the School. Although a wall had once separated the access road and the parking lot, it is undisputed that, years earlier, the Church had removed the wall and paved the area between the access road and the parking lot. Inasmuch as the access road was at a higher elevation than the parking lot, the newly paved area was at an incline. Plaintiff parked her vehicle near a snowbank, which was at the top of the incline and had been created by SWBG when it plowed the parking lot and access road. Plaintiff exited her vehicle and, after retrieving items from the rear of the vehicle, she slipped and fell, striking her head on the pavement. In their amended complaint, as amplified by their second supplemental bill of particulars, plaintiffs alleged, inter alia, that plaintiff slipped on ice that had accumulated as a result of the incline and the snowbank. Plaintiffs asserted that all three conditions, i.e., the ice, the incline and the snowbank, constituted dangerous conditions that separately or cumulatively caused plaintiff's fall. They further alleged, inter alia, that defendants created or had actual and/or constructive notice of the dangerous conditions.
Defendants moved for summary judgment dismissing the amended complaint and, thereafter, SWBG moved for summary judgment dismissing the amended third-party complaint. Supreme Court granted each motion in part, dismissing the negligence causes of action insofar as they are based on claims of "actual notice of a dangerous condition and notice of a recurrent dangerous condition," and dismissing the third-party cause of action for contribution. Defendants appeal, and plaintiffs and SWBG cross-appeal. We now modify the order by denying SWBG's motion in its entirety and reinstating the third-party cause of action for contribution.
Contrary to defendants' contention, the court properly denied that part of their motion concerning creation of the allegedly dangerous conditions. Defendants asserted that they did not create any dangerous conditions and that, in any event, their alleged negligence was not a proximate cause of plaintiff's fall. "[T]he evidence submitted by defendant[s] in support of [that part of their] motion was insufficient to establish as a matter of law that [they] did not create or cause the allegedly dangerous condition[s] ... or that [their] alleged negligence was not a proximate cause of plaintiff's injuries" ( Laymon v. Allen, 81 A.D.3d 1298, 1299, 916 N.Y.S.2d 553 [4th Dept. 2011] ). Defendants' own submissions raised triable issues of fact whether they created the allegedly dangerous conditions and whether those conditions were a proximate cause of plaintiff's fall.
In support of their motion, defendants submitted, inter alia, plaintiff's deposition testimony. Although plaintiff testified that she did not recall where she fell and that, at the time of her fall, she had not yet begun to walk down the incline in the pavement, defendants also submitted deposition testimony from School employees who had observed plaintiff immediately after her fall. Those employees placed plaintiff in the immediate vicinity of the snowbank and the incline, both of which were surrounded by thick ice. Indeed, one employee testified that she observed plaintiff's body on the incline just beyond the snowbank after the fall. Defendants thus failed to establish as a matter of law that plaintiff's fall "was unrelated to the [incline] of the parking lot [or to the snowbank]," which plaintiffs alleged were created by defendants ( Geloso v. Castle Enters., 266 A.D.2d 849, 849, 698 N.Y.S.2d 131 [4th Dept. 1999] ). In any event, plaintiffs submitted evidence raising a triable issue of fact whether the ice upon which plaintiff allegedly slipped had accumulated as a result of either the incline or the snowbank (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).
We further conclude that the court properly denied that part of defendants' motion seeking dismissal of the negligence causes of action insofar as they are based on claims of constructive notice. "To constitute constructive notice, a defect must be visible and apparent[,] and it must exist for a sufficient length of time prior to the accident to permit [a] defendant's employees to discover and remedy it" ( Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986] ). Here, defendants "failed to establish as a matter of law that the [dangerous] condition[s were] not visible and apparent or that [they] had not existed for a sufficient length of time before the accident to permit [defendants] or [their] employees to discover and remedy [them]" ( St. John v. Westwood–Squibb Pharms., Inc., 138 A.D.3d 1501, 1503, 31 N.Y.S.3d 720 [4th Dept. 2016] [internal quotation marks omitted]; see Rivera v. Tops Mkts., LLC, 125 A.D.3d 1504, 1506, 4 N.Y.S.3d 431 [4th Dept. 2015] ).
In any event, even assuming, arguendo, that defendants met their initial burden of establishing either that the ice that had formed allegedly as a result of the incline and the snowbank was not visible and apparent or that it had "formed so close in time to the accident that [they] could not reasonably have been expected to notice and remedy [it]" ( Rogers v. Niagara Falls Bridge Commn., 79 A.D.3d 1637, 1638, 914 N.Y.S.2d 539 [4th Dept. 2010] [internal quotation marks omitted] ), we conclude that plaintiffs raised triable issues of fact sufficient to defeat that part of defendants' motion concerning constructive notice (see generally Zuckerman, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). Contrary to defendants' contention, the affidavit of plaintiffs' meteorologist was neither speculative nor conclusory, and adequately set forth foundational facts and recited the manner in which she came to her conclusions (see Rogers, 79 A.D.3d at 1638, 914 N.Y.S.2d 539 ; cf. Austin v. CDGA Natl. Bank Trust & Canandaigua Natl. Corp., 114 A.D.3d 1298, 1300, 980 N.Y.S.2d 660 [4th Dept. 2014] ).
On their cross appeal, plaintiffs contend that the court erred in granting those parts of defendants' motion seeking dismissal of the causes of action for negligence insofar as they are based on claims of actual notice and notice of a recurrent dangerous condition, i.e., the repeated formation of ice as a result of the incline and the snowbank. We reject those contentions.
Defendants established that they did not have actual notice of any dangerous condition by submitting evidence that they did not receive any complaints concerning the condition of the parking lot and access road and were not otherwise aware of any ice or other slippery substance in that location prior to plaintiff's accident (see Navetta v. Onondaga Galleries LLC, 106 A.D.3d 1468, 1469, 964 N.Y.S.2d 835 [4th Dept. 2013] ; Costanzo v. Woman's Christian Assn. of Jamestown, 92 A.D.3d 1256, 1257, 938 N.Y.S.2d 404 [4th Dept. 2012] ). Plaintiffs failed to raise a triable issue of fact (see generally Zuckerman, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ).
With respect to plaintiffs' claims of a recurrent condition, we note that " ‘[a] defendant who has actual knowledge of a recurring dangerous condition can be charged with constructive notice of each specific reoccurrence of the condition’ " ( Rachlin v. Michaels Arts & Crafts, 118 A.D.3d 1391, 1393, 988 N.Y.S.2d 741 [4th Dept. 2014] ; see Chrisler v. Spencer, 31 A.D.3d 1124, 1125, 817 N.Y.S.2d 835 [4th Dept. 2006] ). Defendants' submissions established that they had no actual knowledge of any recurring dangerous condition (cf. Phillips v. Henry B's, Inc., 85 A.D.3d 1665, 1666, 925 N.Y.S.2d 770 [4th Dept. 2011] ; Anderson v. Great E. Mall, L.P., 74 A.D.3d 1760, 1761–1762, 902 N.Y.S.2d 283 [4th Dept. 2010] ), and plaintiffs failed to raise a triable issue of fact (see generally Zuckerman, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). "Although plaintiffs submitted defendant[s'] incident reports involving defendant[s'] [employees] falling in the parking lot on prior occasions, none of the reports identified a specific location in the parking lot, and they are therefore insufficient to raise an issue of fact with respect to constructive notice of an alleged recurrent condition" ( DeJesus v. CEC Entertainment, Inc., 138 A.D.3d 1390, 1391, 30 N.Y.S.3d 418 [4th Dept. 2016], lv denied 28 N.Y.3d 906, 2016 WL 6432811 [2016] ; see Abbattista v. King's Grant Master Assn., Inc., 39 A.D.3d 439, 442, 833 N.Y.S.2d 592 [2d Dept. 2007] ).
With respect to the third-party action, we agree with defendants that the court erred in granting SWBG's motion insofar as it sought dismissal of the contribution cause of action. It is undisputed that SWBG entered into a contract with the Church to provide snowplowing services, which included salting or sanding the plowed areas at the discretion of SWBG. There are "three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care—and thus be potentially liable in tort—to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, ‘launche[s] a force or instrument of harm’ ... (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties ... and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely" ( Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ). In their verified bill of particulars, defendants relied solely on the first situation.
With respect to the first situation, although SWBG piled the snow in the area of the incline, SWBG established that it did so only at the Church's direction. Even assuming, arguendo, that such evidence is sufficient to establish that SWBG did not launch a force or instrument of harm, we conclude that defendants raised a triable issue of fact whether SWBG piled the snow at that location on its own initiative and thus whether SWBG launched a force or instrument of harm, i.e., created or exacerbated a dangerous condition (see Meyers–Kraft v. Keem, 64 A.D.3d 1172, 1173–1174, 883 N.Y.S.2d 838 [4th Dept. 2009] ; Rak v. Country Fair, Inc., 38 A.D.3d 1240, 1241, 831 N.Y.S.2d 794 [4th Dept. 2007] ).
To the extent that defendants contend for the first time on appeal that there are triable issues of fact under the second and third Espinal situations, those contentions are not properly before us (see Bruno v. Price Enters., 299 A.D.2d 846, 847, 752 N.Y.S.2d 180 [4th Dept. 2002] ; see generally Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 [4th Dept. 1994] ).
Finally, we reject SWBG's contention on its cross appeal that the court erred in denying that part of its motion seeking dismissal of the indemnification cause of action. "If in fact an injury can be attributable solely to negligent performance or nonperformance of an act solely within the province of the contractor, then the contractor may be held liable for indemnification to an owner" ( Murphy v. M.B. Real Estate Dev. Corp., 280 A.D.2d 457, 457–458, 720 N.Y.S.2d 175 [2d Dept. 2001] ). Even assuming, arguendo, that SWBG met its initial burden with respect to that principle (see Bermingham v. Peter, Sr. & Mary L. Liberatore Family Ltd. Partnership, 94 A.D.3d 1424, 1425, 942 N.Y.S.2d 296 [4th Dept. 2012] ; see also Proulx v. Entergy Nuclear Indian Point 2, LLC, 98 A.D.3d 492, 493, 949 N.Y.S.2d 178 [2d Dept. 2012] ; Roach v. AVR Realty Co., LLC, 41 A.D.3d 821, 824, 839 N.Y.S.2d 173 [2d Dept. 2007] ), we conclude that defendants raised triable issues of fact whether plaintiff fell as a result of a dangerous condition that was "attributable solely to negligent performance or nonperformance of an act solely within the province of [SWBG]" ( Murphy, 280 A.D.2d at 457–458, 720 N.Y.S.2d 175 ).
Mark W. Bennett
Clerk of the Court
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion of third-party defendant in its entirety and reinstating the third-party cause of action for contribution and as modified the order is affirmed without costs.