Opinion
23582/2017E
08-17-2020
Robin STROBLE, Plaintiff, v. TES AVE U, LLC, New York-Prebyterian/Brooklyn Methodist, NYM Medical Associates, Tilosco Inc. and Wet Out Now Cleaning and Restoration, Defendants.
Upon the foregoing papers, defendant Tes Ave U, LLC (hereinafter, "Tes") moves (Motion Sequence No. 2) for summary judgment dismissing the complaint of the plaintiff against it pursuant to CPLR 3212, and for summary judgment against defendants New York-Prebyterian/Brooklyn Methodist (hereinafter, "New York Methodist") and NYM Medical Associates (hereinafter, "NYM") for failure to procure insurance and contractual indemnity. Defendants New York Methodist and NYM separately move for summary judgment dismissing the complaint of the plaintiff pursuant to CPLR 3212, and for summary judgment against defendant Wet Out Now Cleaning and Restoration (hereinafter, "Wet Out") for common law indemnification.
On October 22, 2016, plaintiff, a medical assistant, allegedly fell over a hose at premises located at 98 Avenue U in Brooklyn, New York. At the time of the accident, non-party Franco employed plaintiff as a medical assistant. Plaintiff testified that she had left the building at approximately 11:00 AM, but did not see any liquid on the floor at that time, or when she returned five minutes later. She and her co-worker Evelyn Aponte left work at approximately 1:30 or 1:45 PM, but almost immediately plaintiff returned to the office at which she was employed, as she recalled that she had her employer's car keys. After approximately 5 minutes, she and her employer returned to the vestibule area to exit the building. She noticed for the first time two hoses which ran from the outside through the vestibule area. She stepped over the two hoses, and then slipped and fell due to the presence of a wet substance on the floor. It was raining at the time of the accident. She testified that after she fell, her hands and buttocks were wet. She testified that "after I fell, I realized there was a liquid on the floor. I can't recall or say what it was. It could have been water. It could have been cleaning solution. I don't know."
Evelyn Aponte, plaintiff's co-worker, testified that it was announced the day prior to that accident that the floors would be cleaned, and that everyone should vacate the building by 1:00 PM. She exited the building immediately prior to plaintiff's accident, and witnessed the accident. She testified that she did not see any water when she exited the building. She observed drips of liquid after the accident that she could not identify as water or some other clear liquid.
Tes moves for summary judgment dismissing the complaint of the plaintiff against it, and for summary judgment against defendants New York Methodist and NYM for failure to procure insurance and contractual indemnity. Defendant Tes, the owner, leased the building to New York Methodist Hospital, which in turn subleased space to various physicians, including non-party Franco, plaintiff's employer. The net lease from Tes to New York Methodist provides in relevant part that New York Methodist will procure general liability insurance in favor of Tes. In addition:
"On Tenant's default in obtaining or delivering any such policy or policies or failure to pay the charges therefor, Owner may secure or pay the charges for any such policy or policies and charge the Tenant as additional rent therefore. Tenant shall indemnify and save harmless Owner against and from all liabilities, obligations, damages, penalties, claims, costs and expenses for which Owner shall not be reimbursed by insurance, including reasonable attorney's fees, paid, suffered or incurred as a result of any breach by Tenant, Tenant's agent, contractors, employees, invitees, or licensees, of any covenant or condition of this lease, or the carelessness, negligence or improper conduct of the Tenant, Tenant's agents, contractors, employees, invitees or licensees. Tenant's liability under this lease extends to the acts and omissions of any subtenant, and any agent, contractor, employee, invitee or licensee of any subtenant. In case any action or proceeding is brought against Owner by reason of any such claim, Tenant, upon written notice from Owner, will, at Tenant's expense, resist or defend such action or proceeding by Counsel approved by Owner in writing, such approval not to be unreasonably withheld."
Tes allegedly tendered the defense of this action to New York Methodist, which allegedly refused to defendant Tes.
Tes's witness, Tadros, testified at an examination before trial that according to terms of the lease between TES and New York Methodist, all responsibility for cleaning was placed on New York Methodist. New York Methodist produced witness Ann Thompson, who testified at an examination before trial that she was an employee of New York Methodist at the time of plaintiff's accident, and that she herself had contracted with defendant Tilosco, Inc. (hereinafter, "Tilosco") for "detailed cleaning" on the day of the accident. Tilosco in turn subcontracted the cleaning to defendant Wet Out.
In opposition, defendants New York Methodist and NYM argue that the indemnity provision of the lease was not triggered, as New York Methodist and NYM were not negligent. In this regard, they argue that plaintiff did not see any water when she exited the building, and plaintiff's co-worker, who walked through the vestibule minutes before the accident, did not see any water in the vestibule other than a few "drips." (These defendants did not address the alleged failure to procure insurance.)Plaintiff, in opposition, maintains that the net lease contained a provision allowing the owner to re-enter the premises for the purposes of making repairs, and that the presence of hoses and other cleaning equipment constituted a significant structural or design defect contrary to a specific statutory violation, for which the owner may be liable.
Defendant Wet out also opposes the motion by defendant Tes, arguing that Tes fails to authenticate the lease offered as proof of its lack of liability. In this regard, We Out argues that Tes's witness, Tadros, had no knowledge whatsoever of any of the relevant facts relating to the lease agreement, the maintenance of the premises, or the circumstances of the accident in question. Wet Out relies on Tadros's testimony that she is a human resource manager for TES, she had never reviewed or looked at the purported lease prior to her deposition, and she did not know what the lease pertained to. The purported lease is not authenticated as complete or accurate.
In reply, Tes argues that the indemnification provision of the net lease obligates New York Methodist to indemnify Tes for any acts or omissions that may lead to liability (so long as it is not acts or omissions of Tes) that are caused by New York Methodist, its agents, contractors, employees, invitees or licensees. Tes also argues that Wet Outs arguments as to the authenticity of the lease are misplaced, as the parties to the lease raised no issue as to its validity.
Motion Sequence No. 3
Defendants New York Methodist and NYM Medical Associates separately move for summary judgment dismissing the complaint of the plaintiff pursuant to CPLR 3212, and for summary judgment against defendant Wet Out for common law indemnification. Defendants New York Methodist and NYM Medical Associates argue that they had no notice of any dangerous condition of liquid in the vestibule. Further, they produce climatological records showing that rain fell constantly on the day of the accident, and argue that they had no obligation to constantly mop the floor for "tracked-in" rain water. Defendants additionally maintain that they are entitled to common law indemnification from defendant Wet Out.
In opposition, plaintiff argues that where members of the public frequent a location, a landowner owes a non-delegable duty to provide members of the general public with a reasonably safe premises, including a safe means of ingress and egress, citing Thomassen v. J & K Diner , 152 AD2d 421. Where a property owner has a non-delegable duty to keep the premises safe, the duty may not be delegated to agents, employees or independent contractors, citing Backiel v. Citibank , N.A., 299 AD2d 504 (2d Dept. 2002). Plaintiff argues that "it is more than probable" that Wet Out's employees, as agents of NYM, caused water, a cleaning solution or some other liquid to be on the floor of the vestibule at the subject premises, and placed fans or floor cleaning machines and two hoses in the vestibule of the premises, and removed the mats that were previously in place, thereby creating a dangerous condition which ultimately caused plaintiff to slip and fall.
Defendant Wet Out maintains that its witness Robert White denied the presence of liquid at the accident location. Further, White also denied that the hoses were positioned such that plaintiff would have had to step over them. Thus, Wet Out argues, there is no showing that it was negligent. Further, Wet Out argues New York Methodist and NYM were responsible emptying the building of employees, and that they failed in that duty.
Discussion
Liability of defendant Tes
Defendant Tes was an out-of-possession owner at the time of the accident. The lease placed the obligation to maintain the premises on defendants New York Methodist and NYM. An out-of-possession landlord "is generally not liable for negligence with respect to the condition of property ... unless [it] is either contractually obligated to make repairs and/or maintain the premises or has a contractual right to reenter, inspect and make needed repairs at the tenant's expense and liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision" ( Johnson v. Urena Serv. Ctr. , 227 AD2d 325, 326, 642 NYS2d 897 [1st Dept. 1996], lv denied 88 NY2d 814, 673 NE2d 1243, 651 NYS2d 16 [1996] ). Defendant Tes has submitted unrebutted evidence that it had no obligation to maintain or repair the premises, and that it only collected rent.
As an out-of-possession landlord with a reserved right to enter to make repairs, even if defendant had constructive notice of a defective condition on the staircase, it could only be found liable if the defect that caused plaintiff's accident was "a significant structural or design defect that was contrary to a specific statutory [safety] provision" ( Devlin v. Blaggards III Rest. Corp. , 80 AD3d 497, 497-498, 916 NYS2d 580 [1st Dept. 2011], lv denied 16 NY3d 713, 948 NE2d 929, 924 NYS2d 322 [2011] ; see Marie D. v. Roman Catholic Church of the Sacred Heart , 161 AD3d 448, 448, 76 N.Y.S.3d 535, 536 [1st Dept. 2018].) Leaving hoses on the floor, removing a mat, and allowing a liquid to be present are not significant structural defects. ( Yuying Qiu v. J & J Grocery & Deli Corp. , 115 AD3d 627, 627-628, 982 N.Y.S.2d 755, 755-756 [1st Dept. 2014] [leaving trap door open was not a significant structural defect].) Plaintiff has failed to establish a violation of a specific statutory provision as a necessary prerequisite to impose liability upon the out-of-possession landlord (see Centeno v. 575 E. 137th St. Real Estate, Inc. , 111 AD3d 531, 975 NYS2d 335 [1st Dept. 2013] [a general "non-specific safety provision" providing a general duty to keep premise in good repair such as Administrative Code of City of NY § 28-301.1 is insufficient to impose liability on an out-of-possession owner].)
Defendant Tes's witness Tadros identified the signature of her employer and definitively identified the lease at her deposition. As noted, defendants New York Methodist and NYM have not disputed the authenticity of the lease, and further, the deposition testimony of all defendants establishes the parties' respective understanding regarding their maintenance responsibilities, and the parties' course of conduct supports Tes's prima facie showing of out-of-possession status. ( Correa v. 3716-42 E. Tremont Assoc. , LLC., 2018 NY Misc. LEXIS 1695, 2018 NY Slip Op 50680(U) [Bronx County 2018].)
Accordingly, Tes is entitled to summary judgment dismissing the complaint against it.
Liability of Defendants New York Methodist and NYM
Defendants New York Methodist and NYM have not established a prima facie case of the absence of negligence. It is true, generally, that, "the fact that a floor was permitted to become wet on a rainy or snowy day standing alone does not constitute negligence, nor is a general awareness that it was snowing or raining, and that the floor may become wet, sufficient to establish notice. As the First Department observed in Pomahac v. TrizecHahn 1065 Ave. of the Ams. LLC , 65 AD3d 462, 884 N.Y.S.2d 402 (1st Dep't 2009), reasonable care does not require a defendant to cover the entire floor with mats or to continuously mop all of the tracked-in rain in order to prevent a person from falling." (LexisNexis AnswerGuide New York Negligence § 3.07 [2020].) Further, said defendants would not generally be liable for the negligence of Wet Out, an independent contractor. However, as stated in Pesante v. Vertical Indus. Dev. Corp. , 142 AD3d 656, 657, 36 N.Y.S.3d 716, 718 [2d Dept. 2016], affd 29 NY3d 983, 53 N.Y.S.3d 249, 75 N.E.3d 666 [2017] [owners of parking lot had nondelegable duty] ):
" ‘Generally, "a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor's negligent acts" ’ ( Brothers v. New York State Elec. & Gas Corp., 11 NY3d 251, 257, 898 NE2d 539, 869 NYS2d 356 [2008], quoting Kleeman v. Rheingold, 81 NY2d 270, 273, 614 NE2d 712, 598 NYS2d 149 [1993] ). ‘One of the exceptions to this general rule is the "nondelegable duty exception, which is applicable where the party is under a duty to keep premises safe" ’ ( Horowitz v. 763 E. Assoc., LLC, 125 AD3d 808, 810, 5 NYS3d 118 [2015], quoting Backiel v. Citibank, 299 AD2d 504, 505, 751 NYS2d 492 [2002] [internal quotation marks omitted] ). In such instances, the party " ‘is vicariously liable for the fault of the independent contractor because a legal duty is imposed on it which cannot be delegated’ " ( Horowitz v. 763 E. Assoc., LLC, 125 AD3d at 810, quoting Rosenberg v. Equitable Life Assur. Socy. of U.S., 79 NY2d 663, 668, 595 NE2 840, 584 NYS2d 765 [1992] )."
The present case falls within the exception. In Backiel v. Citibank, N.A. (299 AD2d 504, 751 N.Y.S.2d 492 [2d Dept. 2002] ), an employee of a cleaning company fell upon leaving the defendant's commercial building, when she slipped on an area which had been hosed down by a fellow employee. The court held that a non-delegable duty was placed on property owners to keep the entrances and passageways of a public building safe for tenants, their visitors, and their employees. Here, the accident occurred in a "public area" of the building — the front entry vestibule, and thus a nondelegable duty exists.
Defendants New York Methodist and NYM may therefore be vicariously liable if Wet Out is found to be negligent. In this regard, issues of fact exist as to whether water or another liquid was on the floor, and whether, in view of the ongoing rainstorm in progress, the removal of the floor mat and the placement of hoses in the vestibule created a dangerous condition. As the negligence of Wet Out cannot be determined at this juncture, the potential liability of defendants New York Methodist and NYM also cannot be determined.
It is unnecessary to decide whether liability may be predicated on the alleged negligence of defendants New York Methodist and NYM in failing to clear the building of employees before work commenced.
Defendant Tes's Motion for Indemnification, Damages for Failure to Procure Insurance
Defendant Tes has failed to adduce any competent evidence that defendants New York Methodist and NYM failed to procure insurance. Its deposition witness failed to address the issue.
As to contractual indemnification, the lease provides that, "Tenant shall indemnify and save harmless Owner against and from all liabilities for which Owner shall not be reimbursed by insurance paid, suffered or incurred as a result of any breach by Tenant, Tenant's agent, [or] contractors or the carelessness, negligence or improper conduct of the Tenant, Tenant's agents, [or] contractors Tenant's liability under this lease extends to the acts and omissions of any subtenant, and any agent, contractor, employee, invitee or licensee of any subtenant." The first sentence quoted clearly requires that Tenant or its contractor must breach the lease or be negligent before a duty to indemnify exists. In view of this limitation, the second sentence should not be read as extending a duty to non-negligent acts of any agent, contractor, employee or other person. "When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed. The promise should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances" ( Hooper Assoc. v. AGS Computers , 74 NY2d 487, 491-492, 548 NE2d 903, 549 NYS2d 365 [1989] [citations omitted]; see also Rodrigues v. N & S Bldg. Contrs. , 5 NY3d 427, 433, 839 NE2d 357, 805 NYS2d 299 [2005].)
"The right to contractual indemnification depends upon the specific language of the contract" ( Lawson v. R & L Carriers, Inc. , 154 AD3d 836, 838, 63 NYS3d 421 [2d Dept. 2017].) Defendant Tes fails to make a prima facie showing of entitlement to judgment as a matter of law on its claim for contractual indemnification against defendants New York Methodist and NYM, as the lease requires a showing of negligence against the indemnitor before the clause is triggered, and there has been no finding of negligence against defendants New York Methodist and NYM (see e.g. Matter of 91st St. Crane Collapse Litig. , 133 AD3d 478, 480-481, 20 N.Y.S.3d 24 [1st Dept. 2015] ; Fernandez v. Stockbridge Homes, LLC , 99 AD3d 550, 551-552, 952 N.Y.S.2d 522 [1st Dept. 2012].)
Motion by New York Methodist or NYM for Common Law Indemnification
To sustain a cause of action for common-law indemnification, the party seeking indemnity must prove not only that it was not negligent, but must also prove that the proposed indemnitor's negligence contributed to the cause of the accident. ( Morris v. Home Depot USA , 152 AD3d 669, 673, 59 N.Y.S.3d 92, 9 [2d Dept. 2017].) In view of the foregoing discussion, issues of fact exist as to the negligence of defendants New York Methodist or NYM, on the one hand, and defendant Wet Out, on the other, and thus common law indemnity may not be granted.
Conclusion
Those arguments not addressed above are deemed to be without merit.
Accordingly, it is hereby,
ORDERED that Motion Sequence No. 2 is granted only to the extent of dismissing plaintiff's claims against defendant Tes Ave U, LLC, and the motion is otherwise denied, and it is further
ORDERED that the motion of defendants New York-Prebyterian/Brooklyn Methodist and NYM Medical Associates is denied.
This is the Decision and Order of the Court.