Opinion
1650/17
01-08-2020
Mukesh PERSAUD, Plaintiff, v. WF JAMAICA LLC, TD Bank NA, Facility Source LLC, Facility Source Northeast Services LLC and G & S Services Group LLC, Defendants.
The following papers numbered 1 to 43 read on these motions by defendants, Facility Source, LLC and Facility Source Northeast Services, LLC (collectively Facility Source) (Seq. 2); by defendants, WF Jamaica, LLC (WF Jamaica) and TD Bank NA (TD Bank) (Seq. 3); and by defendant G & S Services Group, LLC (G & S) (Seq. 4), all seeking, among other things, summary judgment dismissing the complaint as against them, pursuant to CPLR 3212.
Papers/Numbered
Notices of Motion - Affirmations - Exhibits 1-4, 17-20, 30-33
Affirmations in Support 21-22, 34-35
Answering Affirmations & Briefs - Exhibits 5-12, 23-27, 36-41
Reply Affirmations & Briefs 13-16, 28-29, 42-43
Plaintiff seeks damages for personal injuries sustained, on January 26, 2016, when he was allegedly caused to slip and fall on "unremoved snow and unremoved ice" in the parking lot adjacent to 214-32 Jamaica Avenue , Queens Village, New York. Defendant, WF Jamaica, was the owner of such premises. Defendant, TD Bank, leased the property from the owner. Defendants, Facility Source, performed maintenance on the property on behalf of TD Bank. Defendant, G & S , was hired by Facility Source to perform snow and ice removal on the property, including in the subject parking lot.
Defendants, Facility Source, moved for summary judgment dismissing plaintiff's complaint as against them, and for judgment on their cross claim against defendant, G & S. Defendants, WF Jamaica and TD Bank, moved for summary judgment dismissing the complaint as against them, and for indemnity against defendants, Facility Source. Defendant, G & S, moved for summary judgment dismissing the complaint as against it. Plaintiff, and non-moving defendants, opposed each motion.
Subsequent to the submission of these three motions, defendants, WF Jamaica, TD Bank, and Facility Source, stipulated in writing to discontinue any and all cross claims between each other, which stipulation was filed on January 2, 2020. As such, all branches of the motions seeking dismissal of cross claims between these parties are denied as moot.
"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" ( Ayotte v. Gervasio , 81 NY2d 1062, 1063 [1993], citing Alvarez v. Prospect Hospital , 68 NY2d 320 [1986] ; see Schmitt v. Medford Kidney Center, 121 AD3d 1088 [2d Dept 2014] ; Zapata v. Buitriago , 107 AD3d 977 [2d Dept 2013] ). Once a prima facie demonstration has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of a material issue of fact which requires a trial of the action ( Zuckerman v. City of New York , 49 NY2d 557 [1980] ).
The Court's function on a motion for summary judgment is "to determine whether material factual issues exist, not to resolve such issues" ( Lopez v. Beltre , 59 AD3d 683, 685 [2d Dept 2009] ; Santiago v. Joyce , 127 AD3d 954 [2d Dept 2015] ). As summary judgment is to be considered the procedural equivalent of a trial, "it must clearly appear that no material and triable issue of fact is presented ....This drastic remedy should not be granted where there is any doubt as to the existence of such issues ... or where the issue is ‘arguable’ " [citations omitted] ( Sillman v. Twentieth Century-Fox Film Corp. , 3 NY2d 395, 404 [1957] ; see also Rotuba Extruders v. Ceppos , 46 NY2d 223 [1978] ; Andre v. Pomeroy , 35 NY2d 361 [1974] ; Stukas v. Streiter , 83 AD3d 18 [2d Dept 2011] ; Dykeman v. Heht , 52 AD3d 767 [2d Dept 2008]. The burden is on the party moving for summary judgment to demonstrate the absence of a material issue of fact (see Ayotte v. Gervasio , 81 NY2d 1062 ; Khadka v. American Home Mortg. Servicing, Inc. , 139 AD3d 808 [2016] ). Summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" ( Collado v. Jiacono , 126 AD3d 927, 928 [2d Dept 2014] ), citing Scott v. Long Is. Power Auth. , 294 AD2d 348, 348 [2d Dept 2002] ; see Charlery v. Allied Transit Corp. , 163 AD3 914 [2d Dept 2018]; Chimbo v. Bolivar , 142 AD3d 944 [2d Dept 2016] ; Bravo v. Vargas , 113 AD3d 579 [2d Dept 2014] ).
"A finding of negligence may be based only upon the breach of a duty. If, in connection with the acts complained of, the defendant owes no duty, the action must fall" ( Darby v. Compagnie Nat'l. Air France , 96 NY2d 343, 347 [2001] ; see Federico v. Defoe Corp. , 138 AD3d 682 [2d Dept 2016] ; Abrams v. Bute , 138 AD3d 179 [2d Dept 2016] ). "An owner or tenant in possession of realty owes a duty to maintain the property in a reasonably safe condition" ( Slavin v. Village of Sleepy Hollow , 150 AD3d 924, 925 [2d Dept 2017], quoting Farrar v. Teicholz , 173 AD2d 674, 676 [2d Dept 1991] ; see Livingston v. Better Med. Health, P.C. , 149 AD3d 1061 [2d Dept 2017] ). Since a finding of negligence must be based on the breach of a duty, a threshold question in tort cases arises as to whether the alleged tortfeasor owed a duty of care to the injured plaintiff (see Espinal v. Melville Snow Contrs. , 98 NY2d 136 [2002] ).
Defendants, Facility Source, move, in Seq. 2, for summary judgment dismissing plaintiff's complaint as against them, alleging, initially, that they were not liable to plaintiff herein. Facility Source asserts they "did not own the property where plaintiff claims he fell," and said fact is not opposed by plaintiff. Further, Facility Source contends it is entitled to summary judgment because it has established that it did not have a contract with plaintiff, and that "plaintiff has not alleged in his pleadings that exceptions to the Espinal rule apply" (see Espinal v. Melville Snow Contrs. , 98 NY2d 136 ; Federico v. Defoe Corp. ,138 AD3d 682[2d Dept 2016] ). Here, any duty Facility Source had with respect to the condition of the parking lot would have arisen from the contract with TD Bank. While, generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third person (see Church v. Callanan Indus. , 99 NY2d 104 [2002] ; Randazzo v. Consolidated Edison of NY, Inc. , ––– AD3d ––––, 2019 NY Slip Op. 08236 [2d Dept 2019] ), there are three exceptions to this general rule, i.e. , (1) where a contracting party, in failing to exercise reasonable care in the performance of its duties, launches 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 (see Stiver v. Good & Fair Carting & Moving, Inc. , 9 NY3d 253 [2007] ; Elia v. Parker Queens, LP , 175 AD3d 1245 [2d Dept 2019] ; Reeves v. Welcome Parking, Ltd. Liab. Co. , 175 AD3d 633 [2d Dept 2019] ; Espeleta v. Synergy Resources, Inc. , 172 AD3d 1320 [2d Dept 2019] ).
Facility Source contends that none of these exceptions have been claimed in plaintiff's pleadings, so movants need not demonstrate that such exceptions do not apply to prove its prima facie entitlement to summary judgment, citing Foster v. Herbert Slepoy Corp. , 76 AD3d 210 (2d Dept 2010). Movant is correct, and has made out a prima facie case for summary judgment herein. However, while the prima facie entitlement to summary judgment is "governed by the allegations of liability made by the plaintiff in the pleadings" ( Murphy v. Brown, — AD3d —, 2019 NY Slip Op. 08851 [2d Dept 2019], quoting Foster v. Herbert Slepoy Corp. , 76 AD3d at 214 ; see Hagan v. City of New York , 166 AD3d 590 [2d Dept 2018] ), this resulted in a mere shifting of the burden "to plaintiff to come forward with evidence sufficient to raise a triable issue of fact as to the applicability of one or more of the three Espinal exceptions" ( Foster v. Herbert Slepoy Corp. , 76 AD3d at 214 ; see Laronga v. Atlas-Suffolk Corp. , 161 AD3d 893 [2d Dept 2018] ).
In the case at bar, plaintiff has proffered no evidence whatsoever that it detrimentally relied upon the continued performance of Facility Source's duties, or even was aware of the existence of Facility Source. Additionally, plaintiff has failed to raise an issue of fact with regard to whether movant launched "a force or instrument of harm." However, plaintiff has raised a triable issue of fact as to whether Facility Source "has entirely displaced the property owner's duty to maintain the premises safely" ( Cook v. North Country Academy Executive, LLC , — AD3d —, 2019 NY Slip Op. 51768, *8 [2d Dept 2019] ), by introducing the express terms of the contract between TD Bank and Facility Source which, unlike the contract in Palka v. Servicemaster Mgt. Servs. Corp. , 83 NY2d 579 (1994), and its progeny, demonstrated a possibly "comprehensive and exclusive property maintenance obligation intended to displace" TD Bank's duty ( Pinto v. Walt Whitman Mall, LLC , 175 AD3d 541, 544 [2d Dept 2019] ).
Pursuant to said Service Contract, the contractor, Facility Source, "will commence clearing snow so that there is no more than 2 inches of snow accumulation and will continue as required in the event of continuous snowfall or drifting ... parking lot to be 100% clear curb to curb within 24 hours of the end of the snowfall event." In the instant case, there appears to be no dispute that a snowfall of approximately 36 inches fell on January 23rd, and that the parking lot was plowed on January 25th. The Service Contract goes on to require "[t]he Contractor will apply ice melter ... sand/salt mix to all areas that have a residue of snow or ice after the snow clearing operations. With regard to thaw and re-freeze; Contractors are required to maintain ice free parking lots as in scope for thaw and refreeze until the concern is abated for that event." As such, once two inches of snow accumulated on the parking lot, Facility Source "replaced" TD Bank with regard to any and all snow removal, and/or de-icing, requirements necessary to the parking lot. Consequently, a question of fact exists with regard to whether such snow and ice removal operations were adequately performed by Facility Source, parties with a duty to plaintiff, and the branch of Facility Source's motion seeking summary judgment dismissing plaintiff's complaint as against them is denied.
Moving defendants seek the granting of summary judgment on their cross claims against G & S for breach of contract, contribution, common-law and contractual indemnification, and failure to obtain insurance coverage, and dismissal of the cross claims of defendant, G & S, for, essentially, the same relief. The law is clear that while owners and general contractors "owe nondelegable duties ...to plaintiffs who are employed at their work sites, these defendants can recover in indemnity, either contractual or common-law, from those considered responsible for the accident" ( Kennelty v. Darlind Constr. , 260 AD2d 443, 445-446 [2d Dept 1999] ; see Shea v. Bloomberg , 124 AD3d 621 ).
"[T]he key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is ‘a separate duty owed the indemnitee by the indemnitor’ " ( Raquet v. Braun , 90 NY2d 177, 183 [1997], quoting Mas v. Two Bridges Assoc. , 75 NY2d 680, 690 [1990] ; see Castillo v. Port Auth. of NY & N.J. , 159 AD3d 792 [2d Dept 2018] ). However, " ‘[s]ince the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine’ " ( Henderson v. Waldbaums , 149 AD2d 461, 462 [2d Dept 1989], quoting Trustees of Columbia Univ. v. Mitchell/Giurgola Assoc. , 109 AD2d 449, 453 [1st Dept 1985] ; see Dreyfus v. MPCC Corp. , 124 AD3d 830 [2d Dept 2015] ).
If it is determined that the owner/general contractor is liable to plaintiff, and its liability is only vicarious, i.e. , statutory, said owner/general contractor is entitled to implied indemnity, shifting the loss to the one actively at fault, on the basis that failure to do so would result in the unjust enrichment of the actual wrongdoer at the expense of the owner (see Mas v. Two Bridges Assoc. , 75 NY2d 680 [1990] ; Castillo v. Port Auth. Of New York , 159 AD3d 792 [2d Dept 2018] ; Baek v. Red Cap Services, Ltd. , 129 AD3d 752 [2d Dept 2015] ). "[A] party cannot obtain common-law indemnification unless it has been held to be vicariously liable without proof of any negligence or actual supervision on its own part" ( McCarthy v. Turner Const., Inc. , 17 NY3d 369, 377-378 [2011] ; see Bermejo v. New York City Health & Hospitals Corp. , 119 AD3d 500 [2d Dept 2014] ). Should Facility Source be found negligent in this matter, solely on the basis of its contract with G & S, and without any negligence of its own, common-law indemnification on the part of G & S to Facility Source would be appropriate. However, on the evidence submitted, the branches of the motion seeking the granting of common-law indemnification and contribution in favor of moving defendants, and that seeking dismissal of G & S's claim for common-law indemnification and contribution against moving defendants, are denied as premature. No determination of negligence has yet been made, as plaintiff's injury has not yet been shown to be attributable solely to any action by Facility Source or G & S herein (see Graziano v. Source Builders & Consultants, LLC , 175 AD3d 1253 [2d Dept 2019] ; Seales v. Trident Structurals Corp. , 142 AD3d 1153 [2d Dept 2016] ; Arrendal v. Trizechahn Corp. , 98 AD3d 699 [2d Dept 2012] ). As such, Facility Source is not entitled to common-law indemnity herein, warranting the denial of this branch of its motion dismissing the third-party claim for common-law indemnity against G & S as being premature.
The branches of Facility Source's motion seeking summary judgment against G & S on its claims for contractual indemnity and failure to procure insurance, are, similarly, denied. "The right to contractual indemnification depends upon the specific language of the contract" ( Dos Santos v. Power Auth. of State of NY , 85 AD3d 718, 722 [2d Dept 2011], quoting George v. Marshalls of MA, Inc. , 61 AD3d 925, 930 [2d Dept 2009] ; see McCoy v. Medford Landing, L.P. , 164 AD3d 1436 [ 2d Dept 2018] ; DeSouza v. Empire Transit Mix, Inc., 155 AD3d 605 [2d Dept 2017] ; Valente v. Dave & Buster's of New York, Inc. , 132 AD3d 973 [2d Dept 2015] ). "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 circumstances" ( Alayev v. Juster Assoc., LLC , 122 AD3d 886, 887 [2d Dept 2014] ; see Drzewinski v. Atlantic Scaffold & Ladder Co. , 70 NY2d 774 [1987] ; Cacanoski v. 35 Cedar Place Assoc., LLC , 147 AD3d 810 [2d Dept 2017] ; Lawson v. R & L Carriers, Inc. , 126 AD3d 944 [2d Dept 2015] ).
In the case at bar, the initial seven words of the indemnity clause of the agreement between Facility Source and G & S, i.e. , "To the fullest extent allowed by law," remove this matter from a violation of GOL 5-322.1, in that they do not require the subcontractor to fully indemnify defendants or the owner for their own negligence, but create a partial indemnification obligation on behalf of G & S (see Brooks v. Judlau Contr. Inc. , 11 NY3d 204 [2008}; Jardin v. A Very Special Place, Inc. , 138 AD3d 927 [2016] ; Guryev v. Tomchinsky , 114 AD3d 723 [2014] ). Consequently, the subject indemnification agreements herein are enforceable.
However, the party seeking contractual indemnification "must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor" ( Mohan v. Atlantic Court, LLC , 134 AD3d 1075, 1078 [2d Dept 2015], quoting Cava Constr. Co, Inc. v. Gealtec Remodeling Corp. , 58 AD3d 660, 662 [2d Dept 2009] ; see Davies v. Simon Property Group, Inc. , 174 AD3d 850 ; Fedrich v. Granite Bldg 2, LLC , 165 AD3d 754 [2d Dept 2018] ; Bleich v. Metropolitan Management, LLC , 132 AD3d 933 [2d Dept 2015] ). In the case at bar, Facility Source, while presenting a case that this action arose without any active liability accruing to said moving parties (see Brooks v. Judlau Contr., Inc. , 11 NY3d 204 [2008] ; Lawson v. R & L Carriers, Inc. , 126 AD3d 944 ), failed to absolutely demonstrate the absence of liability on their part, and failed to demonstrate that G & S was negligent herein (see Fedrich v. Granite Bldg. 2, LLC , 165 AD3d 754 ; Shaughnessy v. Huntington Hosp. Ass'n. , 147 AD3d 994 [2d Dept 2017] ; Mohan v. Atlantic Court, LLC , 134 AD3d 1075 ).
Should G & S be found negligent in this matter, contractual indemnification on its part to moving defendants would be appropriate. However, on the evidence submitted, the branch of the motion seeking contractual indemnification is denied as premature. No determination of negligence has yet been made, as plaintiff's injury has not yet been shown to be attributable solely to any action by G & S herein (see Pena v. 104 North 6th Street Realty Group , 157 AD3d 709 [2d Dept 2018] ; Sawicki v. GameStop Corp. , 106 AD3d 979 [2d Dept 2013] ; Arrendal v. Trizechahn Corp. , 98 AD3d 699 ; Bellefleur v. Newark Beth Israel Med. Ctr. , 66 AD3d 807 [2d Dept 2009] ). As such, Facility Source has failed to establish its prima facie entitlement to judgment as a matter of law on contractual indemnity from G & S, warranting the denial of this branch of its motion as being premature (see Pena v. 104 North 6th Street Realty Group , 157 AD3d 709 ; Sawicki v. GameStop Corp. , 106 AD3d 979 ; Bellefleur v. Newark Beth Israel Med. Ctr. , 66 AD3d 807 ).
The branch of Facility Sources' motion seeking dismissal of G & S's cross claim for contractual indemnification and insurance procurement is granted, as there has been no showing that the Service Agreement between the two contains any such clauses meant to inure to the benefit of G & S.
Defendants, WF Jamaica and TD Bank move (Seq. 3) for summary judgment dismissing plaintiffs' complaint as against them. WF Jamaica, as owner, leased the entirety of the premises to TD Bank. "A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property" ( Genefar v. Great Neck Park District , 156 AD3d 762, 763 [2d Dept 2017], quoting Groom v. Village of Sea Cliff , 50 AD3d 1094, 1094 [2d Dept 2008] ). However, "[a]n out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct" ( Robbins v. 237 Avenue X, LLC , — AD3d —, 2019 NY Slip Op. 08237, *2 [2d Dept 2019], quoting Casson v. McConnell , 148 AD3d 863, 864 [2d Dept 2017] ; see Michaels v. Steph-Leigh Associates, LLC , — AD3d —, 2019 NY Slip Op. 08844 [2d Dept 2019] ).
Here, WF Jamaica has demonstrated, prima facie, that it was an out-of-possession landlord in that it did not retain control over the premises, was not contractually obligated to maintain the snow and ice-free condition of the parking lot, did not assume such a duty through a course of conduct, and did not create the alleged hazardous condition by attempting to maintain said parking lot. In opposition, plaintiffs have failed to raise a triable issue of fact. Consequently, WF Jamaica's motion for summary judgment dismissing the action as against it is granted.
With regard to TD Bank's motion, although it has been determined that Facility Source "assumed," contractually, TD Bank's responsibility for all ice conditions after the initial snow-clearing operation was performed, referred only to the duties between those two entities, and the issue of indemnification between them. TD Bank's complete possession and control of the property, as far as an obligation to plaintiffs was concerned, remained, as above-stated, i.e. , a duty to maintain the property "in a safe condition."
TD Bank, as leasor of the parking lot, and the party who hired Facility Source to plow and salt the parking lot, had, or should have had, constructive notice of the hazardous condition of the parking lot. "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] ). "To meet its initial burden on the issue of lack of constructive notice, TD Bank must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" ( Birnbaum v. New York Racing Assn., Inc. , 57 AD3d 598, 598-599 [2008] ; see Bruni v. Macy's Corporate Servs., Inc. ,134 AD3d 870 [2015] ; , Bergin v. Golshani, 130 AD3d 767 [2015] ; Santiago v. HMS Host Corp. , 125 AD3d 838 [2015] ). "[W]hether a dangerous or defective condition exists ...is generally a question of fact for the jury" ( Trincere v. County of Suffolk , 90 NY2d 976, 977 [1997] ).
In the case at bar, TD Bank's evidence, consisting, in part, of documents and testimony of a witness on behalf of Facility Source, and of the deposition testimony of its Store Supervisor, Shameeza Hamid, and of a teller, Shoma Sagar Rahaman, demonstrated only that, pursuant to its contract with Facility Source, the parking lot had been plowed the day before plaintiff's accident, which was two days after the last snowfall. There was no evidence presented that anyone from TD Bank signed off on the job, that it had been satisfactorily performed, or that any salt, ice melter, or other material was placed on the ground at any time after the plowing to curb ice, or re-freezing ice, from remaining or accumulating. Such testimony obviously failed to eliminate all triable issues of material fact as to whether defendant, itself or through its agents, created the alleged hazardous condition, or lacked constructive notice of the dangerous condition (see Ansari v. MB Hamptons, LLC , 137 AD3d 1174 [2016] ; Drouillard v. Smarr , 136 AD3d 973 [2016] ; Arcabascio v. We're Associates, Inc. , 125 AD3d 904 [2015] ; Rodriguez v. Shoprite Supermarkets, Inc. , 119 AD3d 923 [2014] ). Consequently, TD Bank has failed to meet its initial burden on summary judgment, and the branch of this motion seeking dismissal of the complaint as against TD Bank, is denied.
Defendant, G & S, moves for summary judgment and dismissal of plaintiff's complaint (Seq. 4), contending that there exists no triable issue of material fact sufficient to continue this action against it because it owed no duty to plaintiff, pursuant to Espinal , and under the so-called "storm in progress" rule ( New York City Administrative Code § 16-123 ), which holds that "a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm" ( Morris v. Home Depot USA, 152 AD3d 669, 670 [2d Dept 2017], quoting Marchese v. Skenderi , 51 AD3d 642, 642 [2d Dept 2008] ; see Brandimarte v. Liat Holding Corp. , 158 AD3d 664 [2d Dept 2018] ; Delmonte v. Chestnut Oaks at Chappaqua , 134 AD3d 662, 664 [2015] ; Fenner v. 1011 Route 109 Corp. , 122 AD3d 669 [2014] )
G & S contends it is entitled to summary judgment, under this rule, on the basis of having submitted plaintiff's deposition transcript, in which plaintiff, allegedly, stated that the night before the subject accident it had been "sleeting." Defendant contends that while this alleged "sleeting" was still in progress, it had no duty to clear the sidewalk, and could not have had adequate time to do so prior to plaintiff's early morning accident, pursuant to said rule. However, while this theory may be legally correct, the evidence presented does not substantiate such a finding. Contrary to defendant's contention, plaintiff's deposition testimony was that "[i]t seemed like it was sleeting overnight because there was a lot of ice on the ground," and, when asked if he saw the "sleeting" happening, he replied "I didn't see it happening but I see ice on the parking lot" in the morning. Further, plaintiff testified that there was no "sleeting" in progress on the morning of the accident. Plaintiff also described mounds of snow in the parking lot, adjacent to the area where he fell, and "black ice" covering that area, which he attempts to prove through photographs taken at the time. Belying plaintiff's "assumption" that a "sleeting" condition took place overnight on January 25th, plaintiff proffered climatological records showing that there was no recorded precipitation at nearby JFK Airport on the 25th, and none until beyond the time of plaintiff's accident on the 26th. If no new precipitation froze on the surface of the parking lot the night before plaintiff's accident, the "black ice" allegedly present, and the cause of plaintiff's slip and fall, could have come from the mounds of snow, placed in the lot when the lot was cleared by G & S, having melted and re-frozen. "If the storm has passed and precipitation has tailed off to such an extent that there is no longer any appreciable accumulation, then the rationale for continued delay abates, and commonsense would dictate that the rule not be applied" ( Powell v. MLG Hillside Assoc. , 290 AD2d 345, 345-346 [2d Dept 2002] ; see Casey-Bernstein v. Leach & Powers, LLC , 170 AD3d 651 [2d Dept 2019] ).
Such indicia of "how long the alleged ice may have existed prior to the plaintiff's accident," raises "a triable issue of fact as to whether the defendants had notice of, or created, the alleged dangerous condition" ( Dwulit v. Walters , 19 AD3d 535, 536 [2d Dept 2005] ). While the evidence shows that G & S had performed snow removal operations in the parking lot on the morning of January 25th, said defendant has failed to address, much less prove, the issue of its snow removal activities following that, and, consequently, has "failed to eliminate all triable issues of fact as to whether the (condition) upon which the plaintiff slipped was formed when" said defendant failed to remedy any ice accumulation attributable to melting and re-freezing prior to the accident ( Viera v. Rymdzionek , 112 AD3d 915, 916 [2d Dept 2015] ; see Branciforte v. 2248 Thirty First Street, LLC , 171 AD3d 1003 [2d Dept 2019] ; Rong Wen Wu v. Arniotes , 149 AD3d 786 [2d Dept 2017] ; Lindquist v. Scarfogliero , 129 AD3d 789 [2d Dept 2015] ). Without concrete, specific evidence that it did not exacerbate or create the icy condition, or that it did not launch an instrument of harm, G & S failed to meet its prima facie burden, (see Stimmel v. Osherow , 133 AD3d 483 [1st Dept 2015] ; Jackson v. Manhattan Mall Eat, LLC , 111 AD3d 519 [1st Dept 2013] ), and failed to establish prima facie entitlement to judgment dismissing the complaint as a matter of law by arguing that there was a storm in progress, or that it did not have notice of, or did not create, the allegedly dangerous condition, warranting denial of this branch of its motion (see Morris v. Home Depot USA, 152 AD3d 669 ; DeMonte v Chestnut Oaks at Chappaqua , 134 AD3d 662 [2d Dept 2015] ). As movant has failed to substantiate its prima facie burden in the first instance, it is unnecessary to consider whether plaintiff's opposition papers are sufficient to raise a triable issue of fact (see Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851 [1985] ; M.M.T. v. Relyea, — AD3d —, 2019 NY Slip Op. 08591 [2d Dept 2019] ).
Additionally, contrary to G & S's claim of lack of a duty on it's part to plaintiff, asserting that no exception to the Espinal decision applies in this matter to depart from such rule's stated outcome, an issue of fact in that regard remains. G & S, having had the responsibility for, and having actually performed, the snow clearing operations at the site of plaintiff's accident, has failed to adequately establish that it was not responsible for launching a force or instrument of harm, in the form of plowing the snow from the parking lot into piles, which may have thawed and re-frozen, thereby causing plaintiff's accident, and, as a result, this branch of G & S's motion is, therefore, denied.
The parties' remaining contentions and arguments are either without merit or need not be addressed in light of the foregoing determinations.
Accordingly, the branch of Facility Source's motion (Seq. 2) for summary judgment dismissing the complaint as against it is denied. The branch of said motion seeking common- law and/or contractual indemnification against G & S is denied. The branch of said motion seeking dismissal of G & S's cross claims against Facility Source, for contractual indemnification and failure to procure insurance is granted. The motion by WF Jamaica and TD Bank (Seq. 3) seeking summary judgment dismissing the complaint, as against WF Jamaica, is granted. The same motion by TD Bank is denied. The motion by G & S (Seq. 4), seeking summary judgment dismissing the complaint against it, on several grounds, is denied in its entirety.