Opinion
No. 700585/11.
11-13-2014
Melida SALINAS, Plaintiff, v. WELLS FARGO BANK, N.A., as Trustee for The Benefit of the Certificate Holders, and Mueller–James Securities, Inc., f/k/a Park Place Securities, Inc., Defendants.
Opinion
Motions Seq.No.2 and Seq.# 4 are combined for disposition.
The following numbered papers read on the motion Seq.# 2 by third-party defendant, Safari Realty, Inc.(Safari) for summary judgment dismissing the third-party complaint and read on the Motion Seq.# 4 by defendant/third-party plaintiff, Wells Fargo Bank, N.A., as Trustee for the Benefit of the Certificate Holders, and Mueller–James Securities, Inc., f/k/a Park Place Securities, Inc., (Wells Fargo) for an extension of time to move for summary judgment and upon granting leave, granting summary judgment dismissing the complaint; and for summary judgment in its favor on its claim for contractual indemnification,
PAPERS
e–FILE NUMBERED
| Seq.# 2 Notice of Motion–Affidavits–Exhibits | 24 Answering |
| Affidavits–Exhibits | 48–50 Replying |
| Affidavits | 51 |
| Seq.# 4 Notice of Motion–Affidavits–Exhibits | 61–82 |
| Answering Affidavits–Exhibits | 83 |
| Answering Affidavits–Exhibits | 90–92 |
| Replying Affidavits | 84–85 |
| Replying Affidavits | 89 |
Upon the foregoing papers it is ordered that these motions are determined as follows.
The branch of Wells Fargo's motion for leave to make a late summary judgment motion is granted. Although the motion was made beyond the time limit provided in the So Ordered Stipulation dated March 5, 2014, the court will consider it on the merits inasmuch as Wells Fargo had established good cause for the lateness (Brill v. City of New York, 2 NY3d 648, 652 [2004] ; Miceli v. State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004] ). It is undisputed that Wells Fargo previously timely moved (Motion Seq.# 3) for summary judgment, however, the motion was improperly marked off the motion calendar in the Central Motion Part(CMP) instead of being adjourned in accordance with the rules of CMP and parties' stipulation.
This is an action to recover for personal injuries plaintiff allegedly sustained on September 9, 2010 between 7:00 p.m. and 8:00 p.m. when she tripped and fell on the public sidewalk abutting the premises located at 88–08 171st Street, in Queens County (hereinafter the property). Plaintiff claims that as she was walking home from the supermarket pushing her shopping cart containing bags of groceries in front of her, the two front wheels of the cart went into a hole and the back wheels rose up causing her to fall on top of the cart and then to the ground.
Plaintiff commenced an action against Wells Fargo, the owner of the property. Wells Fargo commenced a third-party action against Safari for common-law and contractual indemnification and for breach of contract for failure to obtain insurance naming it as an additional insured.
Safari now moves (Seq.# 2) for summary judgment in its favor dismissing all causes of action asserted against it in the third-party complaint.
Wells Fargo separately moves (Seq.# 4) for summary judgment in its favor dismissing the complaint on the grounds that it cannot be held liable to the plaintiff inasmuch as the alleged defect is trivial and not-actionable, that it is open and obvious and that Wells Fargo did not create nor have actual or constructive notice of the condition.
In support of their respective motions, the movants submitted the deposition testimony of the plaintiff; the defendant by Kirk Hilton, an employee of Bank of America, N.A.(Bank of America) the servicer and Asset Manager for Wells Fargo; Francine A. Reali, Vice President of Safari; Jeannine Delgaudio, an employee of Safari; a copy of the Master Listing Agreement signed by Safari on June 13, 2007 and a copy of the “Listing Letter” dated January 11, 2012, the deed to the premises and photographs of the allegedly area of the sidewalk where plaintiff fell.
Wells Fargo failed to establish, prima facie, its entitlement to summary judgment dismissing the complaint by demonstrating that it fulfilled its non-delegable duty to maintain the sidewalk in a reasonably safe condition.
Administrative Code of the City of New York § 7–210 imposes upon the owners of real property (with some exceptions not relevant here) a non-delegable duty to maintain the sidewalk abutting its premises in a reasonably safe condition and imposes tort liability on the owner for injuries caused as a result of a failure to do so (see Serano v. New York City Housing Authority, 66 AD3d 867, 868 [2009] ; Cook v. Consolidated Edison Co. of NY, Inc., 51 AD3d 447, 448[2008] ). Although the duty is non-delegable, § 7–210 does not impose strict liability upon the property owner, thus it may be held liable for injury arising out of a defect on the public sidewalk only if it created or had actual or constructive notice of the defective condition (see Khaimova v. City of New York, 95 AD3d 1280, 1281 [2012] ; Harakidas v. City of New York, 86 AD3d 624, 627 [2011] ).
The moving defendants have also failed to establish, prima facie, their entitlement to summary judgment on the grounds of lack of notice. A defendant moving for summary judgment based on lack of notice, is required to make a prima facie showing affirmatively establishing the absence of notice as a matter of law (see Scoppettone v. ADJ Holding Corp., 41 AD3d 693 [2007] ; Joachim v. 1824 Church Ave., Inc., 12 AD3d 409 [2004] ; Colon v. Produce Warehouse Carle Place, 303 A.D.2d 354 [2003] ). It is not disputed that Wells Fargo did not have “actual” knowledge of the alleged dangerous condition of the sidewalk. “To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” (Mercedes v. City of New York, 107 AD3d 767, 768 [2013] quoting Birnbaum v. New York Racing Assn., Inc., 57 AD3d 598, 598–599 [2008] ). Wells Fargo submitted no evidence as to when the area of the sidewalk where plaintiff allegedly fell was last inspected prior to plaintiff's fall. In addition, the photographs submitted by Wells Fargo, color copies of which were provided in plaintiff's opposition, are sufficient to raise issues of fact regarding, inter alia, constructive notice.
Wells Fargo claim that it cannot be held liable to plaintiff nor charged with “constructive notice” because it “delegated” its duty to manage the property to Safari via the Master Leasing Agreement and the Listing Letter. Accepting arguendo, Wells Fargo's claim, it does not affect Wells Fargo's statutory non-delegable duty and does not provide a defense to plaintiff's claim against Wells Fargo based on a violation of section 7–210 (see Church v. Callanan Indus., 99 N.Y.2d 104, 111 [2002] ; Stephen v. Brooklyn Public Library, 120 AD3d 1221 [2014] ; Reyderman v. Meyer Berfond Trust No.1, 90 AD3d 633 [2011] ; Tucciarone v. Windsor Owners Corp., 306 A.D.2d 162, 163 [2003] ). A party who retains an independent contractor will be found vicariously liable for the negligence of the contractor where, as here, liability is the result of the alleged violation of a statutory non-delegable duty (see Paul Brothers v. New York State Elec. & Gas Corp., 11 NY3d 251, 257–259 [2008] ).
Wells Fargo's has also failed to establish, prima facie its entitlement to summary judgment on the ground that the condition of the sidewalk is trivial. A property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip (see Trincere v. County of Suffolk, 90 N.Y.2d 976[1997] ; Trumboli v. Fifth Ave. Paving, 59 AD3d 706 [2009] ). The determination of whether an alleged defect is trivial, not constituting a trap or nuisance, requires the examination of all of the facts presented, including the “width, depth, elevation, irregularity, and appearance of the defect, along with the ‘time, place, and circumstance’ of the injury” (Trincere v. County of Suffolk, supra at 978). Even if the condition of the sidewalk was found to be trivial, it may constitute a snare or trap where a pedestrian's view is obscured or her attention is otherwise distracted or diverted (see Bloomfield v. Jericho Union Free School Dist., 80 AD3d 637, 639 [2011] ; Villano v. Strathmore Terrace Homeowners Assn., Inc., 76 AD3d 1061, 1061–1062 [2010] ).
Neither the plaintiff's deposition testimony, nor the copies of the photographs are sufficient to demonstrate, as a matter of law, that the alleged defect was too trivial to be actionable (see Trincere v. County of Suffolk, supra at 977; Lagrasta v. Town of Oyster Bay, 88 AD3d 658, 659 [2011] ; Araujo v. City of New York, 84 AD3d 993, 994 [2011] ; Berry v. Rocking Horse Ranch Corp ., 56 AD3d 711 [2008]Bolloli v. Waldbaum, Inc., 71 AD3d 618, 619 [2010] ; DeLaRosa v. City of New York, 61 AD3d 813, 814 [2009] ) and did not constitute a snare or trap. Based upon, inter alia, the plaintiff's deposition, there exist issue of fact as to whether the condition trivial and whether it constitutes a trap or a nuisance.
Nor is Wells Fargo's contention that condition of the sidewalk was “open and obvious” sufficient to grant summary judgment. To establish its entitlement to summary judgment based upon a claim that the condition is open and obvious Wells Fargo, must establish that the condition was readily observable by the proper use of ones senses and not inherently dangerous (see Cupo v. Karfunkel, 1 AD3d 48, 52 [2003] ). Wells Fargo has failed to establish as a matter of law that the condition of the sidewalk was not “inherently dangerous” and not a condition “... attributable to any negligent maintenance ...” (Cupo v. Karfunkel, supra at 52; see also Gaines v. Shell–Mar Foods, Inc., 21 AD3d 986 [2005] ; Oberstein v. Mayfair Super Markets, Inc., 298 A.D.2d 446 [2002] ; Plessias v. John Vincent Scalia Home for Funerals, Inc., 271 A.D.2d 423 [2000] ; Naim v. Schwartz Bros. Memorial Chapels, Inc., 232 A.D.2d 383 [1996] ; Binensztok v. Marshall Stores, 228 A.D.2d 534 [1996] ). Moreover, the open and obvious nature of an allegedly dangerous condition is relevant to the issue of the comparative fault of the plaintiff and does not preclude a finding of liability against a defendant (see Murphy v. Kulka Const. Corp., 14 AD3d 672 [2005] ; Cupo v. Karfunkel, 1 AD3d 48 [2003] ).
Accordingly, the branch of Wells Fargo's motion for summary judgement dismssing the complaint is denied.
In support of its motion for summary judgment dismissing the third-party complaint, Safari argues that it is not liable to Wells Fargo for common law or contractual indemnification or for breach of contract for failure to obtain insurance naming Wells Fargo an additional insured, because the plaintiff's accident did not arise out of Safari's breach of any duty, obligation or provision of the Master Listing Agreement.
In opposition to the motion, Wells Fargo does not identify what provision of the Master Listing Agreement Safari violated, but rather contends that by the Master Listing Agreement it delegated to Safari the management and maintenance of the premises, which by implication included the sidewalk, which Safari breached. Thus, Wells Fargo is entitled to a defense and common-law and contractual indemnification since Safari breached the Master Listing Agreement by failing to inspect and report the condition of the sidewalk.
The indemnification provision in the Master Listing Agreement provides, in relevant part, that the Broker shall defend and indemnify and hold harmless the Seller for all claims arising out of the breach of any provision obligation or covenant to be performed by Safari under the Master Listing Agreement.
In determining whether an agreement is “comprehensive and exclusive”, courts look to whether the contractor has assumed all of the property owner's safety-related obligations with respect to the premises including the sidewalk (see Smith v. Callanan Industries, Inc., 99 N.Y.2d 104, 113 [2002] ). The Master Listing Agreement is a real estate broker's agreement to sell the real property owned by Wells Fargo. It is not an agreement to manage or maintain the real property much less a “comprehensive and exclusive management and maintenance contract” which displaced Wells Fargo's non-delegable duty as a landowner to maintain the sidewalk (see Espinal v. Melville Snow Contractors, Inc. 98 N.Y.2d 136 [2002] ; Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579 [1994] ; Keshavarz v. Murphy, 242 A.D.2d 680 [1997] ; Phillips v. Young Men's Christian Assn., 215 A.D.2d 825, 826 [1995] ).
Safari and Wells Fargo's predecessor in interest, entered into a Master Listing Agreement, dated June 14, 2007, by which Safari became a Real Estate Owned vendor (REO vendor), an authorized broker to represent a bank, in this case Wells Fargo's predecessor, for the purpose of listing a property or asset of the bank for sale. Mr. Hilton testified that the Master Listing Agreement is drafted by Bank of America, the “Asset Manager”; that it is used throughout the country and does not identify nor authorize the broker to list for sale or market any specific property; that it serves as an umbrella contract with an REO vendor, in this case Safari, designating and hiring it as one “listing” brokers who may be chosen by the bank to list a property for sale. The “Listing Letter” is the means by which the broker is actually authorized to list for sale the property designated in the letter. Mr. Hilton further testified that Safari's duties with respect to the”Property” are set forth in paragraph 7(D) of the Master Listing Agreement, and he did not know whether the broker had any obligations with respect to the sidewalk. Mr. Hilton also testified that all contact between Bank of America and Safari was through a computer generated system called “Equator”.
In January, 2010, Safari received a computer generated request or offer via Equator to begin the process of listing the subject property, which Ms. Reali, Vice President of Safari accepted. Ms. Reali testified that before Safari received the “Listing Letter”, i.e. the actual authorization granting the right to list or market the subject property, Safari received detailed, specific task prompts via Equator as to what to do weekly or monthly to obtain the marketing rights.
A copy of the Equator system prompts was submitted by Wells Fargo in opposition to Safari's motion shows and confirmsMs. Reali's testimony that Safari's initial tasks were to provide a drive by Broker's Price Opinion(BPO) and to ascertain and notify Bank of America whether the property was occupied. Because the property was occupied Safari was instructed by Bank of America only to continue surveillance of the property. Later prompts included unit by unit directions to knock on the door and offer “cash for keys” and report back by the Equator system. There were several prompts from Bank of America to various other entities including several to “A.King” to “Determine Cash for Keys”. The actual eviction was handled by the bank via a prompt on the Equator System to the Eviction Attorney. Ms. Reali also testified that at this stage they inspected the property only up to the property line, however, if she saw any major problems with the sidewalk she would inform the Seller although inspection of the sidewalk was not part of her responsibilities under the Master Listing Agreement.
Contrary to defendant's assertion, the Master listing Agreement does not delegate to Safari the authority to take any action with respect to management, maintenance or repair of the property nor even the right to market or “list” the property for sale. This right was not granted until the issuance of a “Listing Letter” which in this case was issued in 2012. On the contrary, the Master Leasing Agreement (¶ 7 subd. E) expressly prohibits Safari from performing any maintenance or repair work at the premises or hiring any contractors without the express written authorization from the Seller(in this case Wells Fargo), except for emergency repairs, but only when the consent of Seller cannot be reasonably obtained. In addition, the Equator system printout submitted by Wells Fargo demonstrates that management and control of the property was in the hands of Bank of America, Wells Fargo's Asset Manager, who directed what, if any, action was to be performed by each of its agents.
Equally unpersuasive is Wells Fargo's argument that Safari had assumed and been delegated the obligation to inspect the sidewalk and notify Wells Fargo of its condition since inspection of the “Property” as used in the term Master Listing Agreement included the inspection of the sidewalk.
“A written agreement that is complete, clear, and unambiguous on its face must be enforced according to the plain meaning of its terms” (Alvarez v. Amicucci, 82 AD3d 687, 688 [2011], lv. denied 17 NY3d 701 [2011] ; see Patsis v. Nicolia, 120 AD3d 1326 [2014] [citations omitted] Dysal, Inc. v. Hub Props. Trust, 92 AD3d 826, 827 [2012] ). A contract is unambiguous if the language used has “a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion” (Breed v. Insurance Co. of N. Am., 46 N.Y.2d 351, 355 [1978] ). “Mere assertion by one that contract language means something to him, where it is otherwise clear, unequivocal and understandable when read in connection with the whole contract [emphasis added], is not in and of itself enough to raise a triable issue of fact” (Unisys Corp. v. Hercules Inc., 224 A.D.2d 365, 367[1996] [internal quotation marks omitted] ).
The term “Property” as used in paragraph 1 on page 1 and throughout the Master Listing Agreement indicates that the term “Property” means “the property described in the List Letter” to be sold or marketed. The meaning of “property” is unambiguous, and the public sidewalk belongs to the City of New York. Thus, Wells Fargo's contention that the term “Property”, as used in the Master Leasing Agreement, should be interpreted as including the sidewalk is unreasonable (see generally W.W.W. Assoc. v. Giancontieri, 77 N.Y.2d 157, 162–163 [1990] ; see also Reyderman v. Meyer Berfond Trust # 1, 90 AD3d 633 [2011] ; South Rd. Assoc. v. International Bus. Machs. Corp., 2 AD3d 829, 831 [2003], aff'd 4 NY3d 272 [2005] ). Had Wells Fargo intended that the broker's obligation to inspect the “Property” include inspection of the sidewalk, it should have been clearly stated in the Master Listing Agreement (compare Hogeland v. Sibley, Lindsay & Curr Co., 42 N.Y.2d 153, 159 [1977] ). “ ‘... [T]he court may not rewrite the contract or impose additional terms which the parties failed to insert’ “ (Wells Fargo Bank, N.A. v. Meyers, 108 AD3d 9, 22 [2013] quoting Maser Consulting, P.A. v. Viola Park Realty, LLC, 91 AD3d 836, 837 [2012], quoting 131 Heartland Blvd. Corp. v. C.J. Jon Corp., 82 AD3d 1188, 1189 [2011] ).
Having determined, as a matter of law, that the Master Listing Agreement is not a comprehensive and exclusive maintenance contract and that inspection of the sidewalk was not within the scope of duties delegated to or assumed by Safari by the Master Listing Agreement, Wells Fargo is not entitled to common-law or contractual indemnification from Safari (see Reyderman v. Meyer Berfond Trust No.1, 90 AD3d 633, 634–35 [2011] ; D'Alto v. 22–24 129th St., LLC, 76 AD3d 503, 507 [2010] ; Wronka v. GEM Community Management, 49 AD3d 869, 871 [2008] ; see also Stephen v. Brooklyn Public Library, 120 AD3d 1221 [2014] ).
Wells Fargo's claim of breach of contract for failure to obtain insurance naming it as an additional insured, is also dismissed. The provision is not triggered since Wells Fargo's liability, if any, does not arise out of Safari's activities covered by the Master Listing Agreement (see Watkins v. TPK Const. Corp., 259 A.D.2d 695 [1999] ; Ceron v. Revco, 224 A.D.2d 475, 476 [1996]. In addition, since Safari is not an insurer, its duty to defend is no broader than its duty to indemnify (see Sawicki v. GameStop Corp.Sawicki v. GameStop Corp., 106 AD3d 979, 981 [2013] ; Bellefleur v. Newark Beth Israel Med. Ctr., 66 AD3d 807, 809 [2009] ; George v. Marshalls of MA, Inc., 61 AD3d at 930 ; Bryde v. CVS Pharmacy, 61 AD3d 907, 908 [2009] ).
Accordingly, Safari's motion for summary judgment dismissing the third-party complaint is granted and the third-party complaint is dismissed. The branch of Wells Fargo's motion for summary judgment on its claim for contractual indemnification as against Safari is also denied.