Opinion
Index No. 2018-52371 Motion Seq. Nos. 4 & 5
10-07-2021
ROBERTA SAUERMAN-GRENN and JAMES GREEN, Plaintiffs, v. THE MEWS AT HOPEWELL JUNCTION HOUSING DEVELOPMENT FUND COMPANY, INC. THE MEWS AT HOPEWELL JUNCTION LIMITED ARTNERSHIP, THE MEWS AT HOPEWELL JUNCTION ASSOCIATES LLC and WHITE & GREEN LANDSCAPING, INC., Defendant.
Unpublished Opinion
To commence the 30-day statutory time period for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties.
DECISION AND ORDER
ACKER, J.S.C.
The below listed papers numbered 1-43 were considered in connection with the following motions: (I) motion by Defendants The Mews at Hopewell Junction Housing Development Fund Company, Inc. and The Mews at Hopewell Junction Limited Partnership (hereinafter "The Mews") for an Order pursuant to CPLR 3212 granting summary judgment in favor of The Mews and dismissing the Complaint of Plaintiffs Roberta Sauerman-Green and James Green (Roberta hereinafter referred to as "Plaintiff and "Plaintiffs" collectively) in its entirety and for contractual indemnification again co-defendant White & Green Landscaping, Inc. (hereinafter "White & Green"); and (2) Defendant White & Green's motion for summary judgment pursuant to CPLR' 3212:
Motion Seq. #4
Notice of Motion-Affirmation of Alexander S. Johnson, Esq.-Exhibits A-J........................ 1-12
Affirmation in Opposition of Kara L. Campbell,, Esq.-Exhibits A-G-Response to Statement of Material Facts................................ 13-21
Affirmation in Partial Opposition of Kirby J. Smith, Esq........................ .......... 22
Motion Seq. #5
Notice of Motion-Affirmation of Kirby J. Smith, Esq.-Exhibits A-H.........................23-32
Affirmation in Opposition of Kara. Campbell,, Esq.-Exhibits A-G-Response to Statement of Material Facts.....:........................................33-41
Affirmation in Opposition of Alexander S. Johnson, Esq..................................................42
Reply Affirmation of Kirby J. Smith, Esq.........................................................................43
This action was commenced by Plaintiffs on or about July 30, 2018. It is alleged that on February 3, 2018, Plaintiff was injured when she slipped and fell on snow and/or ice in the parking lot located at 345 Route 376, Hopewell Junction, New York (hereinafter "Parking Lot"). Plaintiff was visiting a friend at the complex and slipped and fell when she was about to get into a parked vehicle in the Parking Lot. The Mews Defendants owned the property and Defendant White and Green was the contractor hired by The Mews to plow the Parking Lot at issue.
Defendants now move for summary judgment. The Mews Defendants argue that they are entitled to summary judgment dismissing Plaintiffs' Complaint as they did not create the condition on which Plaintiff fell, nor did they have actual or constructive notice thereof. They also maintain that they are entitled to summary judgment on their contractual indemnification claim against Defendant White & Green. In support of their motion, The Mews Defendants submit the Pleadings, weather reports, their contract with Defendant White and Green, the incident report and the deposition transcripts of Plaintiff, Armend Ahmeti on behalf of The Mews and Anan Elzogherr on behalf of Defendant White & Green.
Defendant White & Green also moves for summary judgment on the ground that it does not owe a duty to Plaintiff. In addition to many of the same exhibits submitted by The Mews, Defendant White and Green also provide Plaintiffs Verified Bill of Particulars.
Plaintiffs oppose both motions and submit the following additional exhibits - photographs of the area in which Plaintiff fell and the affidavit of meteorologist Howard Altschule (hereinafter "Altschule Affidavit"), which annexes the June 1, 2021 Forensic Weather Investigation Report prepared by Altschule together with consulting Meteorologists Dillon Turner and Kyle Gravlin ("Forensic Weather Report").
The movant for summary judgment "bears the initial burden of demonstrating its prima facie entitlement to the requested relief Raos v. King Constr., 116 N.Y.S.3d 344, 346 [2nd Dept. 2020], citing Winegrad v. New York Univ. Med. Ctr,, 64 N.Y.2d 851, 853. Failure to make the initial showing "requires denial of the motion, regardless of the sufficiency of the opposition papers." Junger v. John V. Dinan Assoc, Inc., 164 A.D.3d 1428, 1429 [2nd Dept. 2018], citing Winegrad, supra. Only when the movant has met its prima facie entitlement "does the burden then shift to the party opposing summary judgment to tender evidence, in a form admissible at trial, sufficient to raise a triable issue of fact." Roos, supra, citing Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986].
In opposition, "the nonmoving party need only rebut the prima facie showing made by the moving party so as to demonstrate the existence of a triable issue of fact." Poon v. Nisanov, 162 A.D.3d 804, 806 [2d Dept. 2018], citing Alvarez, supra. "The function of a court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist." I14 Woodbury Realty, LLC v. 10 Bethpage Rd, LLC, 178 A.D.3d 757, 759 [2d Dept. 2019]. Summary judgment should be granted only where there are no material and triable issues of fact and the papers shall be scrutinized in the light most favorable to the party opposing the motion. Id. Such relief is a drastic remedy that deprives a litigant of his or her day in court that should only be employed when there is no doubt as to the absence of triable issues. Castlepoint Ins. Co, v. Command Sec. Corp., 144 A.D.3d 731, 733 [2d Dept. 2016].
Facts
The following facts are not materially in dispute. On February 3, 2018, Plaintiff left her home in Poughkeepsie and travelled to her friend Pat's home at The Mews in Hopewell Junction, so that Pat could give her a ride to the train station. The day was cold and windy, but the roads were clear. When she arrived at The Mews, she parked to the left side of Pat's car, with both cars facing the sidewalk. Pat was waiting in her vehicle when she arrived and Plaintiff gathered her belongings and walked over to the passenger's side of Pat's vehicle. She walked behind Pat's car, rather than on the sidewalk, because there was a mound of snow there that would have >en treacherous to walk over. Plaintiff opened the passenger side door and got into Pat's vehicle, and then realized she had left her phone in her car. She got back out of Pat's car, walked to her vehicle along the same route and retrieved her phone. As she was approaching Pat's passenger side door again, she slipped and fell. The circumference of the compacted snow and ice in the area where she fell was approximately five to six feet, which extended from the vehicle to a u-shaped island. She described the compacted snow and ice as "clear, opaque" and some parts were "solid, translucent."
Defendant White & Green submits a Statement of Material Facts in compliance with Uniform Court Rule 9202.8- g(a) and The Mews and Plaintiff submit Responses thereto. The following facts have either been admitted or were not specifically controverted by the opposing party.
Armend Ahmeti ("Ahmeti") testified on behalf of The Mews Defendants. Ahmeti was the live-in property superintendent at The Mews and was responsible for on-call maintenance, general work, cleaning and repairs. He testified that Defendant White & Green was responsible for removing snow from the parking lot and the sidewalks of the complex and would show up automatically when it snowed. Ahmeti walked the premises every day to make sure all the sidewalks were cleaned and free of snow and ice. If he discovered an area that needed to be cleaned, or that a melt/refreeze condition had occurred, he would contact White & Green to re-salt the premises.
On the day of Plaintiff s accident, Ahmeti received a call from Plaintiffs friend Pat, who told him that her friend had fallen and they were on the way to the hospital. According to his testimony, he called White& Green and when they arrived, they jointly went over to Pat's unit. He further testified that the area looked "okay" and that the spaces and the sidewalks were cleared. He did not recall if there was any snow or ice in the parking space. White & Green salted the whole area, including Pat's parking spot. Ahmeti testified that White & Green would not push snow up onto the island next to Pat's car and would clear all the way to the curb of the island.
Ahmeti prepared an incident report with respect to the accident and this report differs slightly from his testimony. The report indicates that Ahmeti received a phone call from the resident in Unit 47 at approximately 2:15 p.m., stating that she was on the way to the hospital with her friend, who had fallen in the parking lot. According to the report, he went over to the location as soon as he got off the phone where he noticed that the wind was "very bad" and was blowing some light snow around. According to the report, he put some salt down in the parking location by Unit 47 and also put orange cones around the area as a precaution. Ahmeti then called "Anan" to come and spread more salt with his truck.
Anan Elzogheir testified on behalf of White & Green. Elzogheir was the owner/operator of the company from 2015 until it went out of business in 2019. He identified the contract that he entered into with The Mews in November 2017. The terms of the contract provide that it is a non-exclusive agreement pursuant to which White & Green would plow and salt the parking lots and sidewalks at The Mews. He testified that when it snowed above two inches, he would plow the parking lot and sidewalks. If it was less than two inches, he would go around with the sander, spreading "Magic Salt" in the parking lot and on the sidewalks. The spreader he used would be able to get the salt between and under parked cars. The super from The Mews would call tenants to move their cars when White & Green needed to plow the parking lot and if the cars were not moved, they would shovel in between vehicles, pushing snow out of the way and spread salt using a sander and their hands. Elzogheir also testified that White & Green used shovels and pushed snow to the road and then a plow would take it from the road and into a different area. Any snow pushed onto the island was kept as low as they could and the snow would be pushed 36 inches away from the edge of the sidewalk. Elzogherr confirmed that if there was a freeze/re freeze condition, the super would call White & Green. He did not keep written records of his snow removal activities.
Discussion
The Mews' Motion for Summary Judgment as to Plaintiffs Complaint
The Mews Defendants maintain that they are entitled to summary judgment was they did not create or have notice of the condition in question. "A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence." Coelho v. S & A Neocronon, Inc., 178 A.D.3d 662, 663 [2d Dept. 2019]. "[A] defendant who moves for summary judgment in a slip-and-fall case has the initial burden of . making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it [internal quotation marks and citation omitted]." Id. "A defendant has constructive notice of a defect when the defect is visible and apparent, and existed for a sufficient length of time before the accident that it reasonably could have been discovered and corrected." Hughes v. Tower Crestwood 2015, LLC, 197 A.D.3d 633 [2d Dept. 2021]. In order to meet their initial burden on the issue of lack of constructive notice, Defendants must also offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the Plaintiff fell. Coelho, supra.
The Mews has established its prima facie case for summary judgment,, primarily through the testimony of Ahmet.. It is uncontested that White & Green was responsible for the removal of snow in the area in which Plaintiff fell and that Ahmeti did not perform any snow removal services himself. Therefore, The Mews established that they did not create the snow and ice condition. As to actual notice, Ahmeti testified that he had received no complaints as to snow or ice conditions in the area where Plaintiff fell. Finally, as to constructive notice, Ahmeti testified that he inspected the area the morning of Plaintiff s fall and the parking spaces looked clear and he did not recall seeing any ice. This was sufficient to shift the burden to Plaintiffs.
In opposition, Plaintiffs have raised questions fact. Plaintiff testified that she saw the compacted and snow and ice on which she fell before the accident. She traversed the area twice before she fell and was walking carefully because of the condition. Plaintiffs also submit a photograph marked "Exhibit A." Although she does not recall the exact date when the photograph was taken, or whether it was the same spot where she fell, Plaintiff testified that it depicted "close" to the same type of condition. Both Ahmeti and Elzogheir viewed the same photograph. Ahmeti testified that the condition depicted therein would have prompted him to call White & Green to come and re-treat the parking space and Elzogheir agreed that the condition looked like something he would be called back to treat.
In addition, according to Plaintiffs' Forensic Weather Report, the last time precipitation fell was approximately 33 hours before the accident and the last time new ice formed was approximately 22 hours prior to the accident. Although Ahmeti testified that he had inspected the area on the morning of Plaintiffs s fall and did not recall seeing snow or ice, the Forensic Weather Report concludes that the last time new ice would have formed was the day before Ahmeti's inspection. Finally, the Incident Report Ahmeti prepared demonstrates that the condition he discovered prompted him to spread salt on the condition, place orange cones around the area and call White & Green. As such, Plaintiffs have raised questions of fact as to whether the condition on which she fell existed for a sufficient length of time for The Mews Defendants to discover and remedy it and their motion for summary judgment dismissing Plaintiffs-Complaint is denied.
White & Green's Motion for Summary Judgment
Defendant White & Green has also moved to dismiss Plaintiffs' Complaint, arguing that it owed no duty to Plaintiff. It is well settled that as a general rule, "a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties [citations omitted]." Turner v. Birchwood on the Green Owners Corp., 171 A.D.3d 1119, 1120-21 [2d Dept. 2019]. However, the Court of Appeals has recognized three exceptions to the general rule, only one of which is applicable to the instant case: "where the contracting party, in failing to exercise reasonable care in the performance of his duties, launched a force or instrument of harm." Id., quoting Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140 [2002]. Specifically, this exception provides that "a defendant who undertakes to render services and then negligently creates or exacerbates a dangerous condition may be liable for any resulting injury." Espinal, supra at 141-142.
As part of its prima facie showing, White & Green was only required to negate the applicability of those Espinal exceptions that were expressly pleaded by the Plaintiffs or expressly set forth in the Plaintiffs' bill of particulars. Turner supra. Neither Plaintiff nor The Mews Defendants demonstrate that either of the other two Espinal exceptions should be evaluated in this case.
Defendant White & Green has established its prima facie case by showing that Plaintiff was not a party to its snow removal contract and that it thus owed her no duty of care. Turner, at 1121. Defendant White & Green also proved through the testimony of Elzogherr that when it snowed more than two inches, he would plow or shovel all of the snow from the parking spaces and would not leave too much snow on the island next to where Plaintiff fell. According to Ahmeti's testimony on behalf of The Mews, he did not recall seeing any snow or ice in the area in which Plaintiff fell during his inspection the morning of the incident. In addition, both Ahmeti and Elzogheir testified that White & Green were only required to return to treat freeze/refreeze conditions if specifically contacted by The Mews Defendants. As such, White & Green "established, prima facie, that it did not create or exacerbate the allegedly icy condition and, thus, launch a force or instrument of harm" and the burden shifts to Plaintiffs.
Trombetta v. G.P. Landscape Design, Inc., 160 A.D.3d 677, 678 [2d Dept. 2018]
In opposition, Plaintiffs fail to raise a question of fact. In essence, Plaintiffs argue that questions are raised as to the adequacy of White & Green's snow removal and salting procedures because where Plaintiff fell did not appear to be properly cleared of snow, nor did it appear to have been salted at all. However, this argument is entirely speculative. Based upon Plaintiffs' Forensic Weather Report, there was no precipitation on the date of the accident and only a trace of pre-existing snow/ice and areas of old melt/refreeze were present on exposed, untreated and undisturbed surfaces. The Report concludes that based upon Plaintiffs testimony, the condition she described is "consistent with pre-existing snow and ice that underwent melting and refreezing processes."
It is well settled that "a launch of a force or instrument of harm has been interpreted as requiring that the contractor create or exacerbate the dangerous condition." Santos v. Deanco Servs., Inc., 142 A.D.3d 137, 141 [2d Dept. 2016]. To the extent that Plaintiffs (and The Mews Defendants) argue that White & Green failed to completely clear the parking space where Plaintiff fell, "[b]y merely plowing the snow in accordance with the contract and leaving some residual snow or ice on the plowed area, [White & Green] cannot be said to have created a dangerous condition and thereby launched a force or instrument of harm. Moreover, a claim • that a contractor exacerbated an existing condition requires some showing that the contractor left the premises in a more dangerous condition than he or she found them." Rudloff v. Woodland Pond Condo. Ass'n, 109 A.D.3d 810, 811 [2d Dept. 2013]. Neither Plaintiffs nor The Mews present anything more than speculation that White & Green left the parking lot in a more dangerous condition that it was found.
To the extent that Plaintiffs imply that Defendant White & Green failed to apply salt in the area where Plaintiff fell, such argument also fails. The Second Department has clearly held that "a failure to apply salt would ordinarily neither create ice nor exacerbate an icy condition, as the absence of salt would merely prevent a preexisting ice condition from improving [emphasis . in original]." Santos v. Deanco Servs., Inc., 142 A.D.3d 137, 143 [2d Dept. 2016]. "That distinction is crucial, as it has been held that the first of the Espinal exceptions cannot be triggered where, as here, there is only speculation and conjecture regarding whether the contractor created or exacerbated an icy condition." Id. Indeed, Plaintiffs Forensic Weather Report attributes the condition to the melting and refreezing of pre-existing snow and ice, as opposed to White & Green's creation or exacerbation of an icy condition.
Moreover, even if White & Green breached its contract with The Mews through the failure to apply salt, Plaintiffs and The Mews offer nothing more than speculation that the failure to perform such duty created or exacerbated the condition that existed when White & Green commenced its work. Id. at 144. Stated another way, "the exception for launching a force or instrument of harm 'cannot be triggered where ... there is only speculation and conjecture regarding whether the contractor created or exacerbated an icy condition.'" Somekh v. Valley Nat. Bank, 151 A.D.3d 783, 786 [2d Dept. 2017], quoting Santos; supra; see also Trombetta, supra at 678-79 (even if snow contractor failed to sand or salt the area where plaintiff fell, plaintiff offered nothing more than speculation that the failure to perform that duty rendered the property less safe than it was before the contractor started its work):
Finally, the instant case is distinguishable from the main case upon which Plaintiffs rely in opposition to White & Green's motion. Notably, Genen v. Metro-N. Commuter R.R., 261 A.D.2d 211, 212 [1* Dept. 1999] was decided by the First Department,, before the Court of Appeals' Espinal decision in 2002. Therefore, the Genen holding is neither binding upon this . Court, nor relevant given the subsequent decisions in Espinal and Santos. As discussed above, based upon the recent case law, Plaintiffs fail to raise any triable issues of fact and White & Green is entitled to summary judgment dismissing Plaintiffs' Complaint.
The Mews Defendants' Motion for Summary Judgment against White & Green
The Mews Defendants also move for summary judgment on its claim against White & Green for contractual indemnification. The terms of the Contract provide that White & Green agreed to the fullest extent permitted by law, to
indemnify, defend, and hold harmless [The Mews]...from and against all claims, damages, demands, losses, expenses, fines, causes of action, suits or other liabilities (including all costs reasonable attorneys' fees, consequential damages and punitive damages), arising out of or resulting from or alleged to arise out of or arise from, the performance of [White & Greens]] Work under the Contract, and any Work Order whether such claim, damage, demand, loss or expense is attributable to bodily injury, personal injury, sickness, disease or death, or to injury to or destruction of tangible property, including the loss of use resulting therefrom; but only to the extent attributable to the negligence of [White & Green] or any entity for which it is legally responsible or vicariously liable; regardless of whether the claim is presented by an employee of [White & Green.. [Emphasis in original]. Independent Contract Agreement, ¶4.The Contract further requires White & Green to procure insurance that will "provide a defense and indemnify [The Mews], but only with respect to liability for bodily injury, property damage and personal and advertising injury caused in whole or in part by [White & Greens]] acts or omission or the acts or omissions of those acting on [White & Greens]] behalf." Independent Contract Agreement,, ¶5.
As acknowledged by The Mews, a party's right to contractual indemnification depends upon the specific language of the contract. Reyes v. Post & Broadway, Inc., 97 A.D.3d 805, 807 [2d Dept. 2012]. Moreover, "[w]here there is no legal duty to indemnify, 'a contractual indemnification provision 'must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed' [citations omitted]." Id. at 807-08. A 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 facts and circumstance.. Id.
Here, the plain language of the contract establishes that The Mews right to indemnification is based upon claims that arise out of the performance of White & Green's work and that the indemnification shall be provided only to the extent attributable to the negligence of White & Green. As discussed above, the record is devoid of any evidence that Plaintiff accident arose out of the performance of White & Green's work, or that the accident is attributable to any negligence on the part of said Defendant. Accordingly, based upon the specific language of the contract, The Mews has not demonstrated that it is entitled to contractual indemnification and its summary judgment motion on that ground is denied.
As noted by The Mews Defendants, although White & Green summarily state that they seek dismissal of all cross claims against it, no substantive argument in support thereof was included in their papers. As such, the cross claims are not dismissed and White and Green shall appear at the scheduled settlement conference.
The Court has considered the additional contentions of the parties not specifically addressed herein and finds them unavailing. To the extent any relief requested by either party was not addressed by the Court, it is hereby denied. Therefore, it is hereby
ORDERED that The Mews Defendants' motion for summary judgment is DENIED in its entirety; and it is further
ORDERED that Defendant White & Green's motion for summary judgment as to Plaintiffs' Complaint is GRANTED; and it is further
ORDERED that this case is scheduled for jury selection on March 14, 202;: and it is further
ORDERED that the Attorney shall appear for a virtual settlement conference via Microsoft Teams on November 8, 2021 at. 10.30 p.m.
The foregoing constitutes the Decisions and order of the Court.