Tomala v. Islandia Expressway Realty, LLC

Full title: ADAM TOMALA, Plaintiff, v. ISLANDIA EXPRESSWAY REALTY, LLC, 2929 CH LLC…

Court: Supreme Court, Suffolk County

Date published: Mar 31, 2021

2021 N.Y. Slip Op. 32973 (N.Y. Sup. Ct. 2021)

Opinion

Index 607518/2017

03-31-2021

ADAM TOMALA, Plaintiff, v. ISLANDIA EXPRESSWAY REALTY, LLC, 2929 CH LLC, 2929 NASSIM LLC, NAMDAR REALTY GROUP, LLC, CARLOS VALENTIM, d/b/a CI FINE LANDSCAPES, ROGERIO VALENTIM d/b/a CI FINE LANDSCAPES, Defendants.

PLAINTIFF'S ATTORNEY: James V. Mattone, Esq. DEFENDANTS' ATTORNEYS: Kennedys CMK

HON. PAUL J. BAISLEY, JR., J.S.C.

Unpublished Opinion

PLAINTIFF'S ATTORNEY: James V. Mattone, Esq.

DEFENDANTS' ATTORNEYS: Kennedys CMK

HON. PAUL J. BAISLEY, JR., J.S.C.

ORDERED that the motion (motion sequence no. 002) for summary judgment by defendants Carlos Valentim d/b/a CI Fine Landscapes, and Rogerio Valentim d/b/a CI Fine Landscapes and the motion (motion sequence no. 003) for summary judgment by defendants Islandia Expressway Realty, LLC, 2929 CH LLC, 2929 Nassim, LLC, and Namdar Realty Group, are consolidated for the purposes of this determination; and it is further

ORDERED that defendants' motions for summary judgment are granted.

This is an action in which plaintiff seeks recovery for personal injuries allegedly sustained on December 30, 2016 at approximately 5:30 a.m. in the parking lot of 2929 Express Drive North, Islandia, New York. On that date, plaintiff, a Suffolk County police officer, alleges that he slipped and fell on ice and/or black ice in the parking lot. Plaintiff alleges that he was handling a 911 dispatch call at the time of the accident. Specifically, plaintiff was responding to a disabled motor vehicle on Motor Parkway, the roadway adjacent to the subject parking lot. Islandia Expressway Realty, LLC, 2929 CH LLC, 2929 Nassim, LLC, and Namdar Realty Group, LLC ('Islandia Expressway") are the owners of the subject property. Carlos Valentim d/b/a CI Fine Landscapes, and Rogerio Valentim d/b/a CI Fine Landscapes C'Fine Landscapes") were retained to perform snow removal services at the property.

Defendants Fine Landscapes now move for summary judgment asserting that they cannot be liable in tort for any alleged breach of the snow services contract between Fine Landscapes and the property owner, Islandia Expressway, as plaintiff was not a party to or an intended beneficiary of the contract; and as such, Fine Landscapes did not owe plaintiff a duty of care. In support of their motion, Fine Landscapes submits copies of the pleadings, preliminary conference order, note of issue, transcript of plaintiff s examination under oath, deposition transcript of Islandia Expressway by George Tasso, deposition transcript of Rogerio Valentim, various photographs of the subject accident location, services contract between owner and Fine Landscapes, and meteorological records.

Defendants Islandia Expressway cross-move for summary judgment, contending that defendants did not create the subject condition nor did they have actual or constructive notice of the condition. Defendants further contend that they are entitled to summary judgment on their cross-claims against co-defendants Fine Landscapes for contractual and common law indemnification, contribution and breach of contract.

In opposition, plaintiff submits that the defendants are liable under the New York State Property and Maintenance Code Section 302.3, and that both the defendant owners and contractor are liable for the piling of the snow that melted into an icy stream.

Plaintiff testified at an examination under oath on January 23. 2019 that the subject accident occurred on December 30, 2016 at approximately 5:30 a.m. at 29-29 Express Drive North, Islandia, New York. At the time of the incident, it was dark, cold, and freezing. He did not believe it had snowed or rained within a 24 hour period prior to the accident; he believed it had snowed "a couple of weeks" before the accident. The parking lot was dimly lit and "very dark." He was responding to a call regarding a disabled vehicle. After initially speaking with the driver of the disabled vehicle and thereafter walking back to his own car, plaintiff was again walking from his car to check on the driver of the disabled vehicle when he slipped and fell on ice. Prior to falling, he did not notice whether there were any icy conditions in the parking lot. He did not see any snow on the blacktop area of the parking lot at any time nor did he see any salt or ice melt on the blacktop area of the parking lot. After he fell, plaintiff noticed that the ice was "pretty thick" and dirty. Plaintiff testified that the ice he slipped on was part of a long "stream of ice" leading from the top of the elevation of the parking lot down in a wide manner. He believes the stream of ice was coming from where the snow was piled on the grass adjacent to the parking lot. He never saw water flowing from the snow bank and he couldn't recall whether there was snow spilling off of the grassy area onto the blacktop.

Rogerio Valentim testified at a deposition on behalf of Fine Landscapes. He testified that the service agreement for the property in question includes snow removal. The contract directed Fine Landscapes to provide snow removal services according to set amounts of snow fall accumulation. If the snow fall is less than one and one-half inches, Fine Landscapes was required to provide de-icing at the premises. The property manager would tell Fine Landscapes where to push and pile the snow. Mr. Valentim never saw the alleged frozen stream prior to the accident. He never had any conversations with anyone from the premises complaining about areas of ice in the parking lot. Fine Landscapes was on a "call basis" with relation to snow removal at the lot which meant after an event of snow, Fine Landscapes would not return to the property unless they were called back to the premises.

George Tasso testified on behalf of Islandia Expressway at a deposition held on July 16, 2019. He is employed by Islandia Expressway as a building engineer at 2929 Express Drive North. Tasso testified that Central Islip Landscapes is responsible for snow removal in the parking lot at this location. Tasso identified the signed service contract between Islandia Expressway and Fine Landscapes. Pursuant to the contract, if any piles of snow are large, Islandia Expressway would instruct Fine Landscapes on where to pile the snow. Mr. Tasso's duties included inspecting the subject location after Fine Landscapes had plowed.

The certified meteorological records from the U.S. Department of Commerce establish that it had last snowed on December 17, 2016, nearly two weeks prior to the subject accident, at which time it snowed three inches. The certified weather records further indicate that the temperature from December 17, 2016 to the date of accident ranged between 42 to 62 degrees and that three days prior to the incident that the high temperature was 62 degrees.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the action. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Sillman v. 20^th Century-Fox Film Corporation, 3 N.Y.2d 395, 165 N.Y.S.2d 498 [1957]). The moving party has the initial burden of proving entitlement to summary judgment (Winegrad v. NYU Medical Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v. NYU Medical Center, supra, ; Friends of Animals v. Associated Fur Manufacturers, 46 N.Y.2d 1065, 416 N.Y.S.2d 790 [1979]). Once such proof has been offered the burden shifts to the opposing party, who, in order to defeat the motion for summary judgment must proffer evidence in admissible form and must "show facts sufficient to require a trial of any issue of fact" (CPLR 3212(b); Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). The opposing party must present facts sufficient to require a trial of any issue of fact by producing evidentiary proof in admissible form (Joseph P. Day Realty Corp. V. Aeroxon Products, 148 A.D.2d 499, 538 N.Y.S.2d 843 [2^nd Dept. 1979]) and must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established (Castro v. Liberty Bus Co., 79 A.D.2d 1014, 435 N.Y.S.2d 340 [2nd Dept. 1981]). Summary judgment shall only be granted when there are no issues of material fact and the evidence requires the court to direct a judgment in favor of the movant as a matter of law.

In order to establish tort liability the plaintiff must demonstrate the existence and breach of a duty owed to him by the defendant (Pulka v. Edelman, 40 N.Y.2d 78L 390 N.Y.S.2d 393 (1976); Palsgrqf v. LIRR, 248 NY 339(1928). He must further demonstrate that defendant's acts or omissions which constituted such breach were a proximate cause of plaintiff s injuries (Sheehan v. City of New York, 40 N.Y.2d 496, 387 N.Y.S.2d 92 [1976]).

A landowner owes a duty to another on his land to keep it in a reasonably safe condition (Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564 (1976); Smith v. Taylor, 279 A.D.2d 566, 719 N.Y.S.2d 686 [2^nd Dept. 2001]). A party who possesses real property either as an owner or a tenant, is under a duty to exercise reasonable care to maintain that property in a safe condition, and this duty includes the undertaking of minimal precautions to protect members of the public from the reasonably foreseeable acts of third persons (Martinez v. Santoro, 273 A.D.2d 448, 710 N.Y.S.2d 374 (2^nd Dept. 2000); Sadler v. Town of Hurley, 288 A.D.2d 805, 720 N.Y.S.2d 613 [3^rd Dept. 2001]). Liability for a dangerous condition on property is predicated upon occupancy, ownership, control or a special use of such premises. The existence of one or more of these elements is sufficient to give rise to a duty of care. Where none is present a party cannot be held liable for injury caused by the defective or dangerous condition on the property (Balsam v. Delma Engineering Corp., 139 A.D.2d 292, 532 N.Y.S.2d 105 [1^st Dept. 1988]; Pappalardo v. NY Health & Racket Club, 279 A.D.2d 134, 718 N.Y.S.2d 287 [1^st Dept., 2000]).

A plaintiff may only recover when he is able to show that the defendants either created the condition which caused the accident or had actual or constructive notice of the condition (Anderson v. Klein Foods, 139 A.D.2d 904, 527 N.Y.S.2d 897 [4^th Dept. 1988]; Moss v. JNK Capital 211 A.D.2d 769, 621 N.Y.S.2d 679 [2^nd Dept. 1995]). Constructive notice may be inferred where the alleged defect was visible and apparent for a sufficient length of time prior to the accident so as to permit the defendant to discover and remedy it (Fasolino v. Charming Stores, 77 N.Y.2d 847, 567 N.Y.S.2d 640 [1991]).

Generally, a third-party contractor is not liable in tort to an injured plaintiff (Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 746 N.Y.S.2d 120 [2002]; Nachamie v. County of Nassau, 147 A.D.3d 770, 47 N.Y.S.3d 58 [2^nd Dept. 2017]). However, the Court of Appeals has identified three situations in which a party who enters into a contract may be held to have assumed a duty of care to non-contracting third persons. Liability may be imposed on a contractor under the following circumstances: (1) ''where the contracting party, in failing to exercise reasonable care in the performance of its duties, 'launched a force or instrument of harm” (Espinal, supra, quoting HR. Moch Co. v. Rensselaer Water Co., 247 NY 160, 168, 159 NE 896 [1928]), thereby creating an unreasonable risk of harm to others or increasing the existing risk; (2) where a plaintiff suffered injury as a result of his or her reasonable reliance on the continued performance of the contracting party's obligations (Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d 220, 226, 557 N.Y.S.2d 286 [1990]); and (3) where the contracting party undertook a comprehensive and exclusive property maintenance obligation intended to displace the landowner's duty to safely maintain the property (Palka v. Servicemaster Mgt. Servs. Corp, 83 N.Y.2d 579, 611 N.Y.S.2d 817 [1994]).

Here, Fine Landscapes established its prima facie entitlement to summary judgment by demonstrating that plaintiff was not a party to the snow removal contract, and therefore, Fine Landscapes did not owe him a duty of care (Bryan v. CLK-HP 225 Rabro, LLC, 136 A.D.3d 955, 26 N.Y.S.3d 207 [2^nd Dept. 2016]; Diaz v. Port Auth. of NY & NJ, 120 A.D.3d 611, 990 N.Y.S.2d 882 [2^nd Dept. 2014]). Having established a prima facie case, the burden shifts to plaintiff to submit sufficient proof to raise a triable issue of fact regarding the applicability of one or more of the Espinal exceptions (Bryan v. CLK-HP 225 Rabro, LLC, 136 A.D.3d 955, 26 N.Y.S.3d 207 [2^nd Dept. 2016]; Foster v. Herbert Slepoy Corp.. 76 A.D.3d 210. 905 N.Y.S.2d 226 [2^nd Dept. 2010]). As plaintiff has not submitted competent proof establishing that one of the Espinal exceptions applies to the instant matter, he has failed to raise a triable issue of fact. Accordingly, the motion of Fine Landscapes for summary judgment dismissing the complaint against it is granted.

An owner or possessor of property has a duty to maintain its property "in reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" (Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564 [1976]). In slip and fall cases involving snow and ice, a property owner is not liable unless he or she created the defect, or had actual or constructive notice of its existence (Castillo v Silvercrest, 134 A.D.3d 977, 24 N.Y.S.3d 86 [2^nd Dept. 2015]; Smith v. Hariri Realty Assoc Inc , 109 A.D.3d 897. 971 N.Y.S.2d 451 [2^nd Dept. 2013; Gil v. Manufacturers Hanover Trust Co., 39 A.D.3d 703, 704, 833 N.Y.S.2d 634 [2^nd Dept 2007]). 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 dangerous condition nor had actual or constructive notice of fits existence for a sufficient length of time to discover and remedy it (Mercedes v. City of New York, 107 A.D.3d 767, 968 N.Y.S.2dd 519 [2^nd Dept. 2013]).

To constitute constructive notice, a hazardous condition must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to afford the defendant a reasonable opportunity to discover and remedy it (Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837. 501 N.Y.S.2d 646 [1986]; Perez v. New York City Hous. Auth., 75 A.D.3d 629, 906 N.Y.S.2d 299 [2^nd Dept. 2010]). Plaintiff has failed to establish that the defendants had actual or constructive notice of the alleged defective condition. Plaintiffs theory that the defendants are liable for the piling of the snow that melted into an icy stream is speculative and not supported by the meteorological evidence (Urena v. NYCTA, 248 A.D.2d 377, 669 N.Y.S.2d 662 [2^nd Dept. 1998]).

In light of the foregoing, defendants' contentions regarding contractual indemnity are moot. Defendants" motions for summary judgment are granted.