Opinion
20572/07.
Decided April 23, 2009.
Plaintiff was represented by Jordana L. Fishman, Esq. of Brecher Fishman Pasternak Walsh Tikler Ziegler, P.C. Defendant was represented by Christine L. Fontaine, Esq. of the Law Offices of Bruce A. Lawrence.
Plaintiff Vicki Sledge allegedly sustained personal injury on July 14, 2004 when she fell in a public bathroom in the building located at 1951 Park Avenue, Manhattan, where she was employed by the owner of the building, City of New York. Defendant Apple Maintenance Services, Inc. a/k/a Apple Maintenance Service, Inc. allegedly contracted with the City to perform cleaning, maintenance, and repair services at the building. With this motion, Apple Maintenance seeks an order, pursuant to CPLR 3212, dismissing the Verified Complaint.
"Ordinarily, the breach of a contractual obligation to maintain and inspect building premises is not sufficient in and of itself to impose tort liability upon the promisor to noncontracting third parties." ( Kaehler-Hendricks v Johnson Controls, Inc. , 58 AD3d 604 , 605-06 [2d Dept 2009]; see also Espinal v Melville Snow Contrs, 98 NY2d 136, 139; Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 589.) "There are, however, three exceptions to this general rule: a party who enters into a contract to render services may be said to have assumed a duty of care and thus be potentially liable in tort to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, "launche[s] a force or instrument of harm"; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties; and (3) when the contracting party has entirely displaced the other party's duty to maintain the premises safely'." ( Koehler-Hendricks v Johnson Controls, Inc., 58 AD3d at 606 [ quoting Espinal v Melville Snow Contrs., 98 NY2d at 140, in turn quoting H.R. Moch Co. v Rensselaer Water Co., 247 NY 160, 168 (1928)] [citations omitted].) "Exacerbating or creating a dangerous condition may be a more pedestrian — — or less elegant — — description than launching a force or instrument of harm, but in practical terms, the criteria are the same." ( Espinal v Melville Snow Contrs., 98 NY2d at 143.)
Where the contracting party seeks summary dismissal of an injured person's complaint, the contracting party establishes its entitlement to judgment as a matter of law by showing prima facie that none of the three conditions to tort liability exists, at least to the extent alleged in the complaint. ( See Kaehler-Hendricks v Johnson Controls, Inc., 58 AD3d at 607; Georgotas v Laro Maintenance Corp. , 55 AD3d 666 , 667 [2d Dept 2008]; Hutchinson v Medical Data Resources, Inc. , 54 AD3d 362, 364 [2d Dept 2008]; Bickelman v Herrill Bowling Corp. , 49 AD3d 578 , 579-80 [2d Dept 2008]; Huttie v Central Parking Corp. , 40 AD3d 704 , 706 [2d Dept 2007].)
Here, Apple Maintenance does not contend that it did not owe Plaintiff a duty to keep the premises reasonably safe, and on oral argument conceded a duty at least for purposes of this motion. It does not appear, however, which of the three conditions to tort liability is deemed satisfied. There is no express allegation of "detrimental reliance" in the Verified Complaint, and no allegations from which it might be implied. As will appear, there is an allegation in the Verified Bill of Particulars that Apple created a dangerous condition, "launching a force or instrument of harm" ( see Espinal v Melville Snow Contrs., 98 NY2d at 143), but that basis of liability would be present in any event if Apple "displaced" the City's duty as owner of the property to keep it reasonably safe ( see id. at 140.)
Although the Court is not aware of any opinion that states that the duty of a contractor liable on a "displacement" theory is measured by the duty owed to the plaintiff by the other contracting party, at least in premises liability cases that is what is done. ( See, for example, Vushaj v Insignia Residential Group, Inc. , 50 AD3d 393 , 393-95 [1st Dept 2008]; Ferrara v JetBlue Airways Corp , 27 AD3d 244 , 244-45 [1st Dept 2006]; Colbourn v ISS Serv. Sys., Inc., 304 AD2d 369, 370 [1st Dept 2003]; Lowe v Spada, 212 AD2d 815, 815 [3d Dept 2001].) On this motion, therefore, Apple Maintenance must make the same type of prima facie showing that would be required of the owner of the premises.
"A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of demonstrating, prima facie, 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." ( Totten v Cumberland Farms, Inc. , 57 AD3d 653 , 654 [2d Dept 2008]; see also Stoppel v Wal-Mart Stores, Inc. , 53 AD3d 651 , 652-53 [2d Dept 2008]; Gregg v Key Food Supermarket , 50 AD3d 1093 , 1093-94 [2d Dept 2008].) "This burden cannot be satisfied merely by pointing out gaps in the plaintiff['s] case." ( Totten v Cumberland Farms, Inc., 57 AD3d at 654; see also Stoppel v Wal-Mart Stores, Inc., 53 AD3d at 653; Vittorio v U-Haul Co. , 52 AD3d 823, 823 [2d Dept 2008]; Gregg v Key Food Supermarket, 50 AD3d at 1094.) "[W]hen the defendant fails to meet its burden, the motion must be denied without regard to the sufficiency of the plaintiff's opposition papers." ( Id.; see also Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853.)
To the extent, therefore, that Apple's motion proceeds on the contention that "plaintiff has failed to establish that defendant . . . had actual or constructive notice of the alleged water condition on the 4th floor ladies bathroom prior to and including July 14, 2004"
(Affirmation in Support, ¶ 19), it cannot succeed. Rather, Apple must show affirmatively that it did not create the hazardous condition that caused Plaintiff's alleged fall, nor had actual or constructive notice of it.
The Verified Complaint alleges that on July 14, 2004 "there was a water leak caused by the defective sink located in the ladies room on the 4th floor" of the building at 1951 Park Avenue, and that Plaintiff "was caused to slip and fall on a puddle of water on the floor of the 4th floor ladies room caused by a defective, leaking sink." (Verified Complaint, ¶¶ 20, 22.) Negligence is alleged in causing the allegedly dangerous condition, and in failing to discover it, remedy it, or warn that it was there, and in the training and retention of personnel responsible for cleaning, maintenance, and repair. ( Id., ¶ 26.) The Verified Bill of Particulars essentially repeats these allegations of negligence, but also adds some specificity with an allegation of "improperly mopping, cleaning and/or making applications to said bathroom floor," and an allegation of "failing to repair leaking pipes in said ladies bathroom." (Verified Bill of Particulars, ¶ 5.)
The Court notes in the first instance that Apple takes no note of the allegation of "improperly mopping, cleaning and/or making applications to said bathroom floor," and, therefore, its "evidentiary submissions were insufficient to make a prima facie showing that the cleaning procedures and products it utilized in performing its contractual duties did not create the alleged dangerous condition." ( See Duggan v Crown Broadway, LLC , 33 AD3d 656 , 657 [2d Dept 2006]; see also Avellino v TrizecHahn Newport, Inc. , 5 AD3d 519 , 520 [2d Dept 2004].)
The only affirmative showing by Defendant of lack of actual or constructive notice is through the deposition testimony of Luis Razo, its janitor. Mr. Razo was one of two employees of Defendant who were regularly at the premises during the workday; the other was building manager Derrick Burren. Mr. Razo worked weekdays from 10:00 a.m. to 6:00 p.m.; Mr. Burren worked from 6:00 a.m. until 3:00 p.m. A four-person crew employed by Defendant cleaned the premises from 6:00 p.m. until 9:00 p.m. There was also security personnel on the premises, but it does not appear whether they were employed by Defendant, the City, or a third-party contractor.
Mr. Razo testified that he inspected the bathrooms, including the fourth-floor women's bathroom, twice during each workday, at 2:00 p.m. and 5:00 p.m., primarily to ensure that they were properly supplied, and occasionally to sweep. Mr. Burren would check the bathrooms in the morning, but we have no deposition testimony or affidavit from Mr. Burren on this motion. The last time that Mr. Razo would have seen the fourth-floor women's bathroom before Plaintiff allegedly fell at 11:45 a.m. would have been at 5:00 p.m. the previous afternoon. (July 14, 2004 was a Wednesday.) The only evidence, therefore, is that there was no puddle on the floor of the bathroom approximately 19 hours before Plaintiff allegedly fell.
Mr. Razo also testified that he was not aware of any leak in the fourth-floor women's bathroom, and had never mopped up water in the bathroom. But, most importantly, Mr. Razo testified that any complaints about conditions on the premises would be made to Mr. Burren or to security personnel; that Mr. Burren would have also been responsible for cleaning up any spill or dangerous condition; and that Mr. Burren was responsible for arranging for any repairs that would have been required to the bathroom sinks. Again, we have no deposition testimony or affidavit from Mr. Burren.
Defendant acknowledges, however, that a non-party witness, Maria Cortes, did give deposition testimony. Ms. Cortes testified that she told Derrick Burren, before the day of Plaintiff's alleged fall, that there was a leaking pipe in the fourth-floor women's bathroom. In light of Ms. Cortes's testimony, the unexplained absence of any deposition testimony or affidavit from Mr. Burren is even more significant. Ms. Cortes's testimony, moreover, related the water on the floor at the time of Plaintiff's fall to a "dripping" sink and water against the wall.
In light of the allegations of the Verified Complaint of a "water leak caused by a defective sink" and a "defective leaking sink" (Verified Complaint, ¶¶ 20, 22), and the deposition testimony of Ms. Cortes, Plaintiff might well establish constructive notice of the allegedly dangerous water puddle by evidence of actual notice of the leaking sink, if a "reasonable inference could then be drawn that the puddle where plaintiff fell was formed by . . . dripping water from the leaks" ( see Cincotta v Big V Supermarkets, Inc., 168 AD2d 818, 819 [3d Dept 1990]; see also Colbourn v ISS International Serv. Sys., Inc., 304 AD2d at 370; Dawson v Raimon Realty Corp., 303 AD2d 708, 709 [2d Dept 2003]; Newman v Great Atl. Pac. Tea Co., 100 AD2d 538, 538-39 [2d Dept 1984].) "A defendant who has actual knowledge of an ongoing and recurring dangerous condition can be charged with constructive notice of each specific recurrence of the condition." ( Brown v Linden Plaza Hous. Co., Inc. , 36 AD3d 742 , 742 [2d Dept 2007]; see also Hutchinson v Medical Data Resources, Inc., 54 AD3d at 363; Lowe v Spada, 282 AD2d 817 [water puddle in front of bathroom sink].)
Having submitted Ms. Cortes's deposition testimony of the leaking sink, Apple raises the spectre of an ongoing or recurrent dangerous condition ( see Wesolek v Jumping Cow Ent., Inc. , 51 AD3d 1376 , 1378 [4th Dept 2008]), requiring a prima facie showing that the leaking was not "frequent, ongoing, and customary, and that it did not have actual notice of this allegedly recurring condition" ( see Brown v Linden Plaza Hous. Co., Inc., 36 AD3d at 742.) Even if, however, Apple could succeed on this motion with only a showing that it did not have actual or constructive notice of the puddle of water that allegedly caused Plaintiff to fall, the motion must fail.
First, "[b]y offering no evidence to establish when the area in which the plaintiff allegedly was injured was last inspected or cleaned on the day in question, the defendant failed to establish its prima facie entitlement to judgment as a matter of law." ( See Ames v Walbaum, Inc. , 34 AD3d 607, 607 [2d Dept 2006]; see also Gerbi v Tri-Mac Enter. of Stony Brook, Inc. , 34 AD3d 732 , 732-33 [2d Dept 2006] [soap on bathroom floor]; Ferrara v JetBlue Airways Corp., 27 AD3d at 244-45 [wet floor]; Yioves v T.J. Maxx, Inc. , 29 AD3d 572 , 573 [2d Dept 2006]; Joachim v 1824 Church Ave., Inc. , 12 AD3d 409 , 410 [2d Dept 2004].) Here, there is no evidence that the fourth-floor ladies room was cleaned or inspected at any time before 11:45 a.m., when Plaintiff allegedly fell. Plaintiff arrived at her job for the City's Human Resources Administration at 8:30 that morning, and the fourth-floor ladies room had been available to agency employees and presumably the public for more than three hours.
Apple "offer[s] no testimony from the employee[ ] working that day who, presumably, could have offered testimony regarding the last time the [bathroom] was checked prior to the accident." ( See Porco v Marshalls Dept. Stores , 30 AD3d 284, 285 [1st Dept 2006]; see also Totten v Cumberland, Farms, Inc., 57 AD3d at 654.) According to Mr. Razo, that person is Derrick Burren, the building manager. Mr. Burren was also the person who would have received complaints about puddles and dripping sinks, and was responsible for arranging for necessary repairs. ( See Moore v 793-797 Garden St. Hous. Dev. Corp., 46 AD3d 382, 382 [1st Dept 2007].)
Apple's showing is insufficient to establish lack of actual or constructive notice of either a water puddle on the floor of the fourth-floor ladies room, or of a leaking sink that previously or on that day caused puddles.
Defendant's motion is, therefore, denied. Within ten (10) days after receipt of a copy of this order with notice of entry, Defendant shall pay Plaintiff $100.00, representing costs on the motion ( see CPLR 8106, 8202.)