Opinion
2012-09-28
Deidre SNIATECKI, Plaintiff–Respondent, v. VIOLET REALTY, INCORPORATED and Main Place Liberty Group, LLG, Defendants–Appellants. Violet Realty, Incorporated and Main Place Liberty Group, LLG, Third–Party Plaintiffs–Appellants–Respondents, v. L. Fanara's Plumbing & Heating, Inc., Third–Party Defendant–Respondent–Appellant, Roy's Plumbing, Inc., Third–Party Defendant–Respondent.
Brown & Kelly, LLP, Buffalo (Kenneth Krajewski of Counsel), for Defendants–Appellants and Third–Party Plaintiffs–Appellants–Respondents. Kenney Shelton Liptak Nowak LLP, Buffalo (Joshua M. Henry of Counsel), for Third–Party Defendant–Respondent–Appellant.
Brown & Kelly, LLP, Buffalo (Kenneth Krajewski of Counsel), for Defendants–Appellants and Third–Party Plaintiffs–Appellants–Respondents. Kenney Shelton Liptak Nowak LLP, Buffalo (Joshua M. Henry of Counsel), for Third–Party Defendant–Respondent–Appellant.
Goldberg Segalla LLP, Buffalo (Dennis Glascott of Counsel), for Third–Party Defendant–Respondent.
Law Office of Joseph A. Ables, Jr., Orchard Park (Norman E.S. Greene of Counsel), for Plaintiff–Respondent.
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, AND MARTOCHE, JJ.
MEMORANDUM:
Defendants-third-party plaintiffs, Violet Realty, Incorporated and Main Place Liberty Group, LLG (hereafter, defendants), appeal and third-party defendant L. Fanara's Plumbing & Heating, Inc. (Fanara's)cross-appeals from an order that, inter alia, denied Fanara's motion for summary judgment dismissing the third-party complaint and all cross claims against it, denied defendants' cross motion for summary judgment dismissing the complaint against them and granted the cross motion of third-party defendant Roy's Plumbing, Inc. (Roy's Plumbing) for summary judgment dismissing the third-party complaint and all cross claims against it. We conclude that Supreme Court properly granted the cross motion of Roy's Plumbing, but that the court erred in denying Fanara's motion and in denying that part of defendants' cross motion for summary judgment dismissing the complaint, as amplified by the bill of particulars, insofar as it alleges that defendants were negligent in failing to warn plaintiff of the dangerous condition at issue. We therefore modify the order accordingly.
Plaintiff commenced this action to recover damages for injuries she sustained when she fell on the wet kitchen floor of a food stand area located on property owned by defendants. At the time of the incident, plaintiff was working for her employer, who had leased the food stand area, including the kitchen area, from defendants. It is undisputed that the kitchen floor was wet because two floor drains in the kitchen had begun backing up the day before plaintiff's accident, causing water to pool on the kitchen floor. In her bill of particulars, plaintiff contended, among other things, that defendants were negligent in failing to maintain the premises in a safe and suitable condition; in failing to repair the plumbing to prevent the clog; in allowing access to an unsafe area; in failing to properly supervise the area of the dangerous condition; and in failing to warn plaintiff of the dangerous condition. Defendants subsequently commenced a third-party action against Fanara's, a contractor hired by defendants to repair the clogged drains, and Roy's Plumbing, a contractor hired by Fanara's after Fanara's was unable to repair the clogged drains. Ultimately, employees of Roy's Plumbing were able to resolve the problem by flushing the piping from two separate access points.
Addressing first the cross motion of defendants, we conclude that they were not entitled to summary judgment dismissing the complaint in its entirety against them. “A landowner is liable for a dangerous or defective condition on his or her property when the landowner ‘created the condition or had actual or constructive notice of it and a reasonable time within which to remedy it’ ” ( Anderson v. Weinberg, 70 A.D.3d 1438, 1439, 894 N.Y.S.2d 292;see Pommerenck v. Nason, 79 A.D.3d 1716, 1716, 914 N.Y.S.2d 826). Defendants failed to establish that they cleaned the pipes at any time between February 2004 and December 28, 2004, the date on which the drains became clogged. It is undisputed that, in a January 2004 proposal for flushing the pipes, defendants' head of maintenance had written a note to the employee in charge of sewer lines asking him to “Pls. arrange for the sewer to be cleaned every 6 mos.” We thus conclude that there is a triable issue of fact whether defendants created the dangerous condition by negligently maintaining the pipes ( see Reimold v. Walden Terrace, Inc., 85 A.D.3d 1144, 1145–1146, 926 N.Y.S.2d 153;cf. Chi–Ming Tang v. Village of Geneseo, 303 A.D.2d 987, 987, 757 N.Y.S.2d 188). We note in any event that, although it is undisputed that defendants acted promptly to remedy the condition, “ ‘[e]ven where the relevant facts are uncontested, summary judgment is rarely appropriate in negligence cases, inasmuch as the issue of whether the defendant ... acted reasonably under the circumstances can rarely be resolved as a matter of law’ ” ( Rubin v. Reality Fashions, 229 A.D.2d 1026, 1027, 645 N.Y.S.2d 182;see generally Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853).
Defendants correctly contend that the violation of their own internal policy would not constitute evidence that they were negligent if their internal policy “require[s] a standard that transcends reasonable care” ( Gilson v. Metropolitan Opera, 5 N.Y.3d 574, 577, 807 N.Y.S.2d 588, 841 N.E.2d 747;see Lesser v. Manhattan & Bronx Surface Tr. Operating Auth., 157 A.D.2d 352, 356, 556 N.Y.S.2d 274,order amended176 A.D.2d 463,affd. sub nom. Fishman v. Manhattan & Bronx Surface Tr. Operating Auth., 79 N.Y.2d 1031, 584 N.Y.S.2d 439, 594 N.E.2d 933,rearg. denied80 N.Y.2d 893, 587 N.Y.S.2d 910, 600 N.E.2d 637). Inasmuch as flushing or cleaning of the pipes is “part of the service that [defendants] provide[ ] and for which [they are] responsible” ( Haber v. Cross County Hosp., 37 N.Y.2d 888, 889, 378 N.Y.S.2d 369, 340 N.E.2d 734), we conclude that it is for the jury to determine whether “observance of [the internal policy] fell within the orbit of what is required by reasonable care” ( Danbois v. New York Cent. R.R. Co., 12 N.Y.2d 234, 240, 238 N.Y.S.2d 921, 189 N.E.2d 468;see Juiditta v. Bethlehem Steel Corp., 75 A.D.2d 126, 135–136, 428 N.Y.S.2d 535).
Defendants also correctly contend that they have no duty to warn of a dangerous condition that is open and obvious ( see Tagle v. Jakob, 97 N.Y.2d 165, 169, 737 N.Y.S.2d 331, 763 N.E.2d 107;Koval v. Markley, 93 A.D.3d 1171, 1172, 940 N.Y.S.2d 367;Mazurek v. Home Depot U.S.A., 303 A.D.2d 960, 962, 757 N.Y.S.2d 425). Although the issue whether a dangerous condition is open and obvious is generally one of fact for a jury, courts “may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion” ( Tagle, 97 N.Y.2d at 169, 737 N.Y.S.2d 331, 763 N.E.2d 107). The facts of this case compel such a conclusion. Defendants established as a matter of law that the dangerous condition was open and obvious and that plaintiff “fully appreciated the danger [the wet floor] presented” ( Duclos v. County of Monroe, 258 A.D.2d 925, 926, 685 N.Y.S.2d 549). Inasmuch as “a plaintiff's theory of negligence based upon the claim that the property owner violated its duty to warn of the claimed hazard may be dismissed upon a demonstration that the hazard was open and obvious” ( Westbrook v. WR Activities–Cabrera Mkts., 5 A.D.3d 69, 71, 773 N.Y.S.2d 38), the court should have granted that part of defendants' cross motion for summary judgment dismissing the complaint, as amplified by the bill of particulars, insofar as it alleges that defendants were negligent in failing to warn plaintiff of the dangerous condition.
We further conclude, however, that defendants failed to establish as a matter of law that plaintiff's conduct was the sole proximate cause of her fall ( see Mooney v. Petro, Inc., 51 A.D.3d 746, 747, 858 N.Y.S.2d 689), and thus that defendants are not entitled to summary judgment dismissing the complaint in its entirety on that additional ground. “[U]nder the circumstances presented, it cannot be said that plaintiff's conduct in [walking across the wet floor] was unforeseeable ... [and rose] to such a level of culpability as to replace [defendants'] negligence as the legal cause of the accident” ( Oliver v. Tanning Bed, Inc., 50 A.D.3d 1259, 1261–1262, 857 N.Y.S.2d 243 [internal quotation marks omitted]; cf. Tkeshelashvili v. State of New York, 18 N.Y.3d 199, 205–207, 936 N.Y.S.2d 645, 960 N.E.2d 414). We also conclude that defendants failed to establish as a matter of law that they lacked any authority to prohibit plaintiff or others from being present in the kitchen on the day of plaintiff's accident, and we therefore conclude that they are not entitled to summary judgment dismissing the complaint, as amplified by the bill of particulars, insofar as it alleges that defendants were negligent in permitting access to the kitchen area.
With respect to the motion of Fanara's and the cross motion of Roy's Plumbing, we note that there were no written contracts requiring them to indemnify defendants or to procure insurance in favor of defendants. Thus, we conclude that they established their entitlement to summary judgment dismissing the contractual indemnification and breach of contract causes of action in the third-party complaint. We also conclude that they established their entitlement to summary judgment dismissing the causes of action for common-law indemnification in the third-party complaint inasmuch as they both established as a matter of law that “plaintiff's accident was not attributable to [their] negligent performance or nonperformance of an act solely within [their] province” ( Bermingham v. Peter, Sr. & Mary L. Liberatore Family Ltd. Partnership, 94 A.D.3d 1424, 1425, 942 N.Y.S.2d 296;see Littleton v. Amberland Owners, Inc., 94 A.D.3d 953, 953–954, 942 N.Y.S.2d 586;cf. Trzaska v. Allied Frozen Stor., Inc., 77 A.D.3d 1291, 1293, 909 N.Y.S.2d 260). Defendants failed to raise a triable issue of fact with respect to any of those causes of action in the third-party complaint.
Finally, we conclude that Fanara's and Roy's Plumbing established their entitlement to summary judgment dismissing the remaining causes of action in the third-party complaint, which sought common-law contribution. It is well established that there are “three situations in which 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) where the contracting party has entirely displaced the other party's duty to maintain the premises safely” ( Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485;see Anderson v. Jefferson–Utica Group, Inc., 26 A.D.3d 760, 760–761, 809 N.Y.S.2d 693). Because there are no allegations in the pleadings that would establish the applicability of any of the three exceptions set forth in Espinal, Fanara's and Roy's Plumbing, “in establishing [their] prima facie entitlement to judgment as a matter of law, [were] ‘not required to negate the possible applicability of any of [those] exceptions' ” ( Brathwaite v. New York City Hous. Auth., 92 A.D.3d 821, 824, 938 N.Y.S.2d 636,lv. denied19 N.Y.3d 804, 2012 WL 1987194). In any event, we conclude that Fanara's and Roy's Plumbing established that none of the exceptions applies. They established as a matter of law that they did not launch a force or instrument of harm by creating or exacerbating a dangerous condition ( see Stiver v. Good & Fair Carting & Moving, Inc., 9 N.Y.3d 253, 257, 848 N.Y.S.2d 585, 878 N.E.2d 1001;Achtziger v. Merz Metal & Mach. Corp., 27 A.D.3d 1137, 1138, 812 N.Y.S.2d 725;Anderson, 26 A.D.3d at 761, 809 N.Y.S.2d 693); that plaintiff did not detrimentally rely on their continued performance of any repairs ( see Vushaj v. Insignia Residential Group, Inc., 50 A.D.3d 393, 394, 855 N.Y.S.2d 117; Anderson, 26 A.D.3d at 761, 809 N.Y.S.2d 693); and that the oral plumbing repair contracts at issue in this case were “not so comprehensive and exclusive that [they] ‘entirely displaced [defendants'] duty to maintain the premises safely’ ” ( Anderson, 26 A.D.3d at 761, 809 N.Y.S.2d 693, quoting Espinal, 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485;see Bermingham, 94 A.D.3d at 1425, 942 N.Y.S.2d 296).
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion of third-party defendant L. Fanara's Plumbing & Heating, Inc. and dismissing the third-party complaint and all cross claims against it and by granting that part of the cross motion of defendants for summary judgment dismissing the complaint, as amplified by the bill of particulars, insofar as it alleges that defendants were negligent in failing to warn plaintiff of the dangerous condition at issue and dismissing the complaint to that extent and as modified the order is affirmed without costs.