Opinion
101043/2008.
Decided January 3, 2011.
JAMES GIANNAKOUROS, ESQ., BROOKLYN, NY, ATTORNEY FOR THE PLAINTIFF.
GALLO VITUCCI KLAR, NEW YORK, NEW YORK, ATTORNEY FOR THE DEFENDANT ABM JANITORIAL SERVICES, INC.
LIFFLANDER REICH, LLP, NEW YORK, NEW YORK, ATTORNEY FOR THE DEFENDANT/THIRD PARTY PLAINTIFF NEW WATER STREET CORP.
HOEY KING TOKER EPSTEIN, NEW YORK, NEW YORK, ATTORNEY FOR THE THIRD-PARTY DEFENDANT BOWNE CO., INC.
In this negligence action, plaintiff Michael DiGirolamo alleges that he sustained personal injury on July 27, 2007, at approximately 8:30 p.m., when he tripped and fell over a small plastic garbage pail that had been left behind a turnstile near an elevator bank in the lobby of the building located at 55 Water Street in Manhattan. Plaintiff had been carrying two pizza boxes at chest level the time of the accident.
Plaintiff commenced this action against defendant New Water Street Corporation ("New Water"), the building owner. Plaintiff has also joined ABM Janitorial Services, Inc. ("ABM"), an independent contractor, which had been hired by New Water, pursuant to a written janitorial services contract dated January 1, 2003, to provide building-wide cleaning services, including the emptying of garbage pails in the lobby. The contract requires ABM to maintain a policy of commercial general liability insurance naming New Water as an additional insured and to defend and indemnify New Water against claims of personal injury arising out of ABM's performance of the contract ( see New Water/ABM Contract §§ 3.1, 3.2).
New Water commenced a third-party action for common-law contribution and indemnification and contractual indemnification against Bowne Co., Inc. ("Bowne"), plaintiff's employer and, allegedly, the owner of the garbage pail. Pursuant to a commercial lease dated February 24, 2005, New Water leased portions of the building to Bowne. Bowne maintains a visitor's greeting and security desk in the lobby, and the pail is, allegedly, kept behind that desk. The turnstile and elevator bank where the accident occurred are designated for use by Bowne employees and invitees. The lease requires Bowne to defend and indemnify New Water against claims of personal injury arising out of Bowne's use of the demised premises, in certain circumstances, and to maintain a policy of commercial general liability insurance naming New Water as an additional insured ( see New Water/Bowne Lease §§ 6.12, 7.02).
In sequence number 002, defendant/third-party plaintiff New Water moves, pursuant to CPLR 3212, for an order granting summary judgment and dismissing all claims, cross claims, and counterclaims asserted against it, and granting summary judgment on its claims asserted against third-party defendant Bowne. In sequence number 003, Bowne moves for an order granting summary judgment and dismissing the third-party complaint. In sequence number 004, ABM moves for an order granting summary judgment and dismissing the complaint and cross claims asserted against it. Motion sequence numbers 002, 003, and 004 are consolidated herein for disposition.
Discussion
Under CPLR 3212(b), summary judgment "shall be granted if, upon all papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." To warrant a court's directing judgment as a matter of law, it must clearly appear that no material issue is presented for trial. Epstein v Scally, 99 AD2d 713 (1st Dep't 1984). When a party has made a prima facie showing to entitle it to summary judgment, the burden shifts to the opposing party to show by evidentiary facts that there is a material issue of fact for trial. Indig v Finkelstein, 23 NY2d 728 (1968); see also Vogel v Blade Contr. Inc., 293 AD2d 376, 377 (1st Dep't 2002). Conclusory allegations or denials are insufficient to either warrant or defeat summary judgment. McGahee v Kennedy, 48 NY2d 832, 834 (1979).
New Water now seeks summary judgment in its favor on all claims asserted against it, on the grounds that there is no evidence regarding the identity of the individual, or that individual's employer, who placed the garbage pail in such a manner so as to create the alleged trip hazard, when the pail was misplaced, or how long it had been misplaced. New Water further contends that plaintiff cannot demonstrate that New Water created the alleged transient condition, or had actual or constructive notice of it. Bowne and ABM support this branch of New Water's motion.
In opposition, plaintiff contends that New Water bears a non-delegable duty to provide a safe space for invitees entering and leaving the building. Plaintiff further contends that New Water breached that duty by permitting the existence of a hidden dangerous condition, consisting of a pail placed behind a turnstile leading to the elevators.
The possessor or owner of real property bears a duty at common law to maintain the property in a reasonably safe condition, and may be held liable for injuries caused by a dangerous condition on the property, if the owner or possessor created, or had actual or constructive notice of, the hazard. Trujillo v Riverbay Corp., 153 AD2d 793, 794 (1st Dep't 1989). "A defendant seeking summary judgment dismissing the complaint based upon lack of notice must make a prima facie showing affirmatively establishing the absence of notice as a matter of law." Carrillo v PM Realty Group , 16 AD3d 611 , 612 (2nd Dep't 2005). "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 defendant's employees to discover and remedy it." Gordon v American Museum of Natural History, 67 NY2d 836, 837 (1986); see also Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 (1994) (dismissing a "general awareness argument" as legally insufficient to establish constructive notice, the Court of Appeals ruled that liability attaches only when a landowner has actual or constructive notice of the specific condition at issue)..
The submitted evidence is insufficient to raise an issue of fact that New Water created the alleged trip hazard or had either actual or constructive notice of its existence. The undisputed record conclusively demonstrates that New Water did not own the garbage pail and did not move it. In addition, there is no evidence demonstrating how long the hazard had been in existence. Plaintiff testified at deposition that he did not see the garbage pail until after he fell, and that he had not seen it when he walked through the same location, on his way out of the building, approximately 30 minutes before the accident ( see Michael DiGirolamo May 21, 2009 Dep Tr, at 23:21-24, 26:2 to 27:16).
He further testified that he had "no idea" how the garbage pail came to be behind the turnstile ( see id. at 30:6-8, 34:20-22). Thus, there are no records, nor is there any testimony, demonstrating that any New Water employee or agent saw the garbage pail behind the turnstiles, or received complaints about the pail's placement, prior to the accident. From this evidence, any finding that the garbage pail had been placed behind the turnstile for any appreciable period of time would be mere speculation. The evidence is just as consistent with a finding that the pail had been placed there mere seconds before plaintiff's fall. Where, as here, the evidence might support an inference that the allegedly unsafe condition existed for a sufficient period of time to create constructive notice, but is equally consistent with a finding that the condition had been created shortly before the accident, the claim will be dismissed. See Anderson v Klein's Foods, Inc., 139 AD2d 904, 905 (4th Dep't 1988), aff'd 73 NY2d 835 (1988); see also Faricelli v TSS Seedman's, Inc., 94 NY2d 772, 774 (1999). Inasmuch as plaintiff cannot prove actual or constructive notice, that branch of the motion to dismiss all claims asserted against New Water is granted.
Next, New Water seeks summary judgment on its third-party claims against Bowne, contending that it is entitled to receive from Bowne a defense and contractual indemnity, including reimbursement of the attorneys' fees and disbursements that it incurred in defending this action. In opposition, Bowne seeks summary judgment in its favor on the ground that the indemnification provision has not been triggered in the circumstances presented here. Plaintiff and ABM take no position on this branch of the motion.
The lease provides, in relevant part, that "[Bowne] shall indemnify and hold harmless [New Water], . . ., from and against any and all claims made by third parties against [New Water] arising from or in connection with (I) any negligence of [Bowne] . . ., (ii) any accident, injury or damage occurring in, at or upon the Premises" during the lease term (New Water/Bowne Lease § 6.12 [b]). The lease also obligates Bowne to maintain commercial general liability insurance with personal injury liability coverage naming New Water as an additional insured ( id., § 7.02). Thus, in clear and unambiguous terms, the lease obligates Bowne to provide New Water with a defense and indemnification where the claim arises from Bowne's own negligence or where the accident occurs on premises leased by Bowne.
This indemnification provision is enforceable under General Obligations Law § 5-321 . A lease provision requiring the tenant to defend and indemnify the landlord against claims of personal injury occurring on the demised premises is enforceable, where, as here, the lease also requires the tenant to obtain and maintain a commercial general liability policy naming the landlord as an additional insured, and the landlord is not found to be solely liable for the injury. See Great N. Ins. Co. v Interior Constr. Corp., 7 NY3d 412, 417-418 (2006). As found above, New Water is not liable fault for the alleged accident. In such circumstances, General Obligations Law § 5-321 does not prohibit the enforcement of the indemnification provision. Id. at 418.
However, although the provision is enforceable, it cannot be determined on this evidentiary record whether the indemnification provision has been triggered. Plaintiff's accident occurred near the security desk, turnstile, and elevators reserved for use by Bowne employees. Robert Chase, vice president of Finance for New Water, attests that, pursuant to the lease terms, Bowne had a security desk on the east side of the north entrance to the J elevator bank, the easternmost turnstile at that location dedicated as Bowne's entrance to the elevator bank, and a Bowne sign on the wall and on the turnstile (Robert Chase Oct. 14, 2010 Aff., ¶¶ 4, 5). In addition, plaintiff attests that the pail was hidden from his view "because it was behind the turnstile that I, and my coworkers at Bowne . . . use to get the elevator up to Bowne's office" (DiGirolamo Jul 27, 2010 Aff., ¶ 3). Bowne does not dispute these characterizations. Further, while Bowne denies ownership of the pail, plaintiff attests that he "never saw the pail anywhere but under the Bowne desk in the lobby, which is located right at the turnstile where I fell" ( id., ¶ 4).
Despite this evidence that the accident happened in the area used by Bowne, whether that area is part of the premises leased by Bowne for purposes of the indemnification provision cannot be conclusively determined from the papers submitted herein. The area does not appear to be referenced in the lease with exhibits provided to the court. Therefore, summary judgment on that branch of New Water's motion for judgment on its claim for contractual indemnification from Bowne and on that branch of Bowne's motion to dismiss the third-party action are denied.
Additionally, the branch of New Water's summary judgment motion for dismissal of ABM's cross claim for contractual indemnification and common-law indemnification and/or contribution is granted. ABM has failed to demonstrate the existence of a written indemnification provision running from New Water to ABM. The contract upon which ABM relies includes a provision obligating ABM to indemnify New Water in certain circumstances, but does not obligate New Water to indemnify ABM under any circumstances ( see New Water/ABM Contract § 3.2). ABM has not cited any legal authority to impose a requirement that indemnification clauses be mutually applicable in janitorial and maintenance contracts. In addition, as discussed above, New Water is not liable for the alleged accident.
On its part, ABM seeks summary judgment and dismissal of all claims asserted against it by plaintiff, on the grounds that ABM did not owe plaintiff a duty of care and that, in any event, there is no evidence that the accident arose out of ABM's conduct or performance of its janitorial duties, or that the pail presented a latent dangerous condition. In opposition, plaintiff contends that numerous triable issues of fact exist regarding whether ABM employees emptied the garbage pail and placed it in plaintiff's path, thus creating the alleged hazard, and whether ABM had constructive notice of the hazard.
Generally, a contractual obligation does not operate to impose a tort duty of care in favor of a non-contracting party. Stiver v Good Fair Carting Moving, Inc. , 9 NY3d 253 , 257 (2007); see Espinal v Melville Snow Contrs., Inc., 98 NY2d 136, 138 (2002). However, the contracting party may be found liable to the plaintiff, where the contracting party, in failing to exercise reasonable care in the performance of its duties, creates or increases the risk of harm to others; where the plaintiff detrimentally relies on the continued performance of the contractor's duties; or where the contracting party has entirely displaced the owner's duty to maintain the premises in a safe condition. See Church v Callanan Indus., Inc., 99 NY2d 104, 111-112 (2002).
Here, triable issues exist regarding whether ABM created the alleged hazard. The record conclusively demonstrates that ABM was the sole company providing janitorial services the night of the accident, was solely responsible for emptying the lobby trash pails, and had more than 70 employees performing janitorial duties at the building on the date of the accident ( see New Water/ABM Cleaning Contract, Art. 1; ABM by Sher Shah Ayoub Jul. 30, 2009 Dep Tr, at 10:3 to 13:6, 36:4-21). Sher Shah Ayoub, the ABM project manager, testified at deposition that ABM personnel never changed the lobby garbage pail liners until after the 11 p.m. shift came on duty, and that ABM always immediately replaced the pails in their proper position under the lobby desks ( see id. at 28:20 to 29:6).
However, plaintiff directly contradicts Mr. Ayoub's testimony. Plaintiff attests that "I have seen the building's cleaning people working in the lobby at night, from 5 p.m. and later. I had seen these cleaning people emptying the garbage pails in the lobby on many occasions before my accident. These cleaning people had uniforms on" (DiGirolamo Aff., ¶ 5; see DiGirolamo Dep Tr, at 98:20-22). Plaintiff further attests that he has since learned that the cleaning people worked for ABM ( see DiGirolamo Aff., ¶ 6). In addition, plaintiff testified at deposition that, after the accident, he did not see any garbage in the pail ( see DiGirolamo Dep Tr, at 27:2-4). From this evidence, the jury could find that the pail had been recently emptied by ABM, in the performance of its contract with New Water. Inasmuch as triable issues exist regarding whether ABM created the alleged hazard, summary judgment on ABM's motion dismissing the complaint is denied.
ABM's contention that it cannot be found liable for breach of a duty to warn plaintiff of the alleged hazard is irrelevant. Contrary to ABM's threshold assumption, in the complaint, plaintiff does not assert a cause of action for breach of a duty to warn against ABM. Further, as the Court has ruled that there is evidence that ABM created the cause of plaintiff's injury, the Court does not address the issue of actual or constructive notice.
Next, ABM seeks summary judgment and dismissal of New Water's cross claim asserted against it, contending that New Water is not entitled to receive from ABM common-law indemnification or contribution or contractual indemnification, including reimbursement of New Water's costs incurred in defending this action. Because New Water is dismissed from the action, the only relevant issue is whether ABM is obligated to reimburse New Water attorney's fees and expenses under a contractual indemnification clause of ABM' janitorial service contract.
ABM contends that New Water is not entitled to contractual indemnification, on the ground that the indemnification provision is void as against public policy under General Obligations Law § 5-322.1, and that no condition precedent to ABM's liability has occurred. The janitorial services contract provides, in relevant part, that:
To the fullest extent permitted by law, [ABM] assumes the entire responsibility and liability for and shall defend . . ., indemnify and hold harmless [New Water], . . . from and against, any loss, expense, liability, judgment, attorney's fees and disbursements, court costs . . ., which [New Water] . . . incur[s] because of injury to or death of any person . . . in connection with or as a consequence of the performance by [ABM] of all or any portion of the Services, and/or any act, error or omission of [ABM] . . .; provided, that [ABM] shall not be liable to [New Water] if the claim giving rise to indemnification hereunder is determined to have resulted solely from or to have been caused solely by the negligence of [New Water]
(New Water/ABM Contract § 3.2 (emphasis added)).
The contract also requires ABM to maintain a policy of commercial general liability insurance, including personal injury coverage, naming New Water as an additional insured ( see id., § 3.1). General Obligations Law § 5-322.1 voids, among others, a provision in a maintenance contract indemnifying the owner for damages arising from the owner's own negligence. To invoke the statute, the party seeking to avoid the agreement must come forward with facts sufficient to infer actual negligence on the part of the party seeking indemnification. See Walsh v Morse Diesel, Inc., 143 AD2d 653, 655 (2nd Dep't 1988).
Here, contrary to ABM's contention, the provision is valid and enforceable and does not violate General Obligation Law § 5-322.1, because New Water is not in whole or in part at fault for plaintiff's injury, and all claims against New Water are dismissed. Whether the condition precedent to ABM's obligation to indemnify New Water, that the accident is found to be related to ABM's conduct, has occurred presents triable issues of material fact, warranting denial of ABM's motion.
ABM, relying on Brooks v Judlau Contracting, Inc. , 11 NY3d 204 , 210-11 (2008), argues that the indemnification clause is not valid under General Obligations Law § 5-322.1, because it provides for full, not partial, indemnification and "contains no saving language, that is, language limiting ABM's obligation to the fullest extent permitted by law.'" In its brief, ABM included only a truncated quotation of the indemnification clause. The complete text can be found in Chapter 3.2 of ABM's janitorial agreement, beginning with the words "to the full extent permitted by the law." In addition, in Brooks, the Court of Appeals found that General Obligations Law § 5-322.1 did not bar recovery of partial contractual indemnification in a case, even where both parties to the indemnification clause were joint tortfeasors. Here, Brooks is inapplicable, because New Water is not at fault for plaintiff's accident and may be entitled to complete indemnification under Chapter 3.2.
Accordingly, it is
ORDERED that motion sequence number 002 is granted to the extent that summary judgment is granted in favor of defendant New Water Street Corporation and the complaint and the cross claim asserted against defendant New Water Street Corporation are severed and dismissed, with costs and disbursements to this defendant as taxed by the Clerk of the Court upon submission of an appropriate bill of costs, and is otherwise denied; and it is further
ORDERED that motion sequence number 003 is denied in its entirety; and it is further
ORDERED that motion sequence number 004 is denied in its entirety; and it is further
ORDERED that counsel for plaintiff shall serve a copy of this decision and order upon all parties and third-parties and upon the Clerk of Court (60 Centre St., Basement) who shall enter judgment in accordance with the foregoing, and sever and continue the claims which are not dismissed and upon the Clerk of Trial Support (60 Centre St., Rm. 158) who shall schedule this matter forthwith for a date in Part 40 for jury selection and a trial.
This constitutes the Decision and Order of the Court.