Opinion
851/03 TSN.
Decided December 6, 2006.
Two motions are pending before the court in the instant matter. Defendants Federated Department Stores, Inc. and Douglastown Plaza Shopping Center, LLC move to dismiss plaintiff's complaint for failure to make a prima facie case; for contractual indemnification against co-defendant 4 Star Contracting, Inc.; and for summary judgment on its cross-claim for breach of contract against 4 Star Contracting. Defendant/third party defendant 4 Star Contracting, Inc. moves for summary judgment pursuant to CPLR 3212, dismissing plaintiff's complaint and all cross-claims.
In August and October of 2001, defendant Douglaston Plaza Shopping Center LLC (hereinafter "Douglaston Plaza") entered into two agreements with 4 Star Contracting, Inc. (hereinafter "4 Star"), under the terms of which 4 Star would remove, replace and cover all expansion joints on the sidewalk at the shopping center. Subsequently, plaintiff filed suit against defendants, alleging that she tripped and fell on an expansion joint, sustaining injury.
Defendants Federated Department Stores and Douglaston Plaza move to dismiss plaintiff's claim against them along with all cross-claims, contending that plaintiff fails to make a prima facie case in this personal injury action. Plaintiff opposes.
The Appellate Division recently summarized the elements of a negligence action alleging a trip-and-fall accident as follows:
It is well established that a landowner is under a duty to maintain its property in a reasonably safe condition under the existing circumstances, including the likelihood of injury to a third party, the potential that such injury would be of a serious nature, and the burden of avoiding such risk. In order to subject a property owner to liability for an alleged breach of this duty, the plaintiff must demonstrate that the owner created, or had actual notice or constructive notice of the hazardous condition which precipitated the injury. Liability based on constructive notice may only be imposed where a defect is visible and apparent and has existed for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it. Moreover, there is no per se rule with regard to the dimensions of a defect that will give rise to liability, and the issue of whether a dangerous or defective condition exists which is sufficiently hazardous to create liability is generally a question of fact, to be resolved by a jury, on the facts particular to the case.
Alexander v. New York City Transit, NYLJ, November 20, 2006, p. 28, col. 6 [1st Dep't] (citations and internal quotation marks omitted).
In a sworn affidavit submitted in opposition to the motion, plaintiff Lena Trano states in pertinent part as follows:
3. After my fall, I observed that the sidewalk where I tripped was not level and one portion of the sidewalk was higher than the other. I also observed that there was a strip that appeared to be rubber which ran the entire width of the sidewalk that my attorney tells me is called an expansion joint. This expansion joint was about five to six inches wide and the height difference on the sidewalk created by the expansion joint was about two to three inches.
* * *
5. In making this affidavit, I have reviewed a series of photographs which are attached to this affidavit. These photographs fairly and accurately show the condition of the sidewalk as it appeared on the day of the accident and the height differential and expansion joint that caused my accident.
(Affirmation in Opposition).
After careful consideration, the court finds that plaintiff has submitted sufficient evidence to make out a prima facie case against all of the defendants under the specific facts and circumstances of this case. The photographs are insufficient to establish the precise dimensions of the defect and, as the court stated in Alexander, there is no "per se" rule regarding the dimensions of a defect that give rise to liability. Accordingly, genuine issues of material fact exist that must be resolved by a jury.
Next, we address defendant 4 Star's motion for summary judgment to dismiss plaintiff's complaint pursuant to CPLR 3212. Defendant 4 Star contends that as a contractor it owed no duty to a third party such as plaintiff. In the alternative, 4 Star contends that even if the expansion joint was somehow defective, the duty to maintain the joint falls squarely on the co-defendants as the owner of the property and not 4 Star, which was already off the job site for at least one month prior to the accident. Plaintiff opposes.
The general rule under New York law is that a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party ( Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 NY2d 220, 226). There are, however, three recognized exceptions to the general rule.
In Espinal v. Melville Snow Contractors, Inc., 98 NYS2d 136 (2002), the Court of Appeals stated that 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 under the following circumstances:
(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launches 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 duties to maintain the premises safely. These principles are firmly rooted in our case law, and have generally been recognized by other authorities.
Espinal, 98 NY2d at 140 (citations and internal quotation marks omitted).
In opposition, plaintiff relies on several cases, including Espinal, arguing that 4 Star's "affirmative act of negligence created a duty to the plaintiff." Specifically, plaintiff alleges that 4 Star installed the expansion joints in a negligent manner.
Where, as here, a contractor such as 4 Star has allegedly installed expansion joints in a sidewalk in a negligent fashion, it is clearly foreseeable that a third party namely, a pedestrian such as plaintiff might be injured as a direct result of the negligent act. Under such circumstances, defendant clearly owes a duty of care to plaintiff under the legal principles set forth in Espinal. Defendant 4 Star's argument that it cannot be liable due to the fact that it was unaware of any complaints or accidents involving the expansion joint prior to plaintiff's accident is equally meritless. See, e.g., Argenio v. Metropolitan Transp. Auth., 277 AD2d 165 [1st Dep't 2000]; George v. New York City Transit Authority, 306 AD2d 160 [1st Dep't 2003].
We turn now to the motion for summary judgment of co-defendants Federated Department Stores and Douglaston Plaza for contractual indemnification as against co-defendant 4 Star Contracting. Moving defendants contend that the contracts explicitly require indemnification.
In opposition, 4 Star contends that it is not obligated to indemnify co-defendants for three reasons. First, plaintiff's accident did not arise out of the work performed by 4 Star within the meaning of the contract. Second, defendant 4 Star completed its work prior to plaintiff's accident. Third, an indemnification clause in a contract does not apply where a plaintiff's accident occurs when the contractor's performance is "on hold."
The indemnification clause in the agreements states as follows:
Hold Harmless Provision. Contractor will and does hereby agree to INDEMNIFY, SAVE HOLD HARMLESS Owner and Architect, their agents and employees, and assigns of and from all claims, loss, damage, injury causes and actions, suits of whatsoever nature for personal injury, including death resulting therefrom, and for property damage alleged to arise out of, or any conditions, of Work performed under this Agreement, whether by Contractor or by any subcontractor of the aforesaid Contractor specifically contracting with this Owner and whether any such claim, cause of action, or suit is asserted against Owner and/or Architect, their agents and employees, and assigns of Contractor severally, jointly and severally.
Contractor will and hereby agrees INDEMINIFY [sic.], SAVE HOLD HARMLESS Owner, Architect, their Agents and employees, and assigns of and from all costs of investigation, adjustment, attorney's fees, court costs, administrative costs, and other related items of expense arising out of any claim, cause of action or suit of the kind and nature set forth in the preceding paragraph.
Contractor specifically declares and admits that the INDEMINITY [sic.] AND HOLD HARMLESS AGREEMENTS contained in the two preceding paragraphs apply with equal force, validity, and intent to the liabilities of Owner and Architect, their agents and employees, and assigns.
(Amended Notice of Motion, Exhibit D).
Defendant 4 Star Contracting guaranteed the materials and workmanship from defects for a one-year period in paragraph 20.11 of the contracts as follows:
A. Contractor hereby agrees to promptly remedy, at its own expense, all defects due to faulty materials or workmanship and the damage caused thereby which appear within the times provided in this Section. Contractor further agrees to deliver to Owner, prior to Contractor's Application for Final Payment, all written guarantees and certificates provided against faulty workmanship and materials required by this Section. Such guarantees and certificates shall be addressed to the Owner and shall include all terminal dates required. The delivery of these documents shall not relieve the Contractor of fulfilling, its complete obligations contained herein.
B. Guaranty for General Construction: Contractor hereby unconditionally guarantees for a period of one (1) year from the last to occur of (a) final completion of the Work (as certified to by Supervising Architect) and (b) acceptance by Owner (as evidenced by substantial completion certificate) that all Work Installed will be free from any and all defects and that all apparatus will develop capacities and characteristics specified. The date that said guaranty shall commence pursuant to the preceding sentence is hereinafter referred to as the "Guaranty Start Date". Whenever, within one (1) year following the Guaranty Start Date, Contractor is notified in writing by Owner that any of the Work or an item of equipment, material and/or workmanship as provided for in the plans and specifications, has proven defective or does not meet the specification requirements, he shall immediately replace, repair or otherwise correct the defect or deficiency to the satisfaction of Owner without cost to Own. [sic.] Contractor also shall replace or repair to the satisfaction of Owner and without cost to Owner any and all damages done to the buildings or their contents or to work of other trades in consequences of work performed in fulfilling Contractor's guarantees.
(Amended Notice of Motion, Exhibit D).
The accident happened on December 6, 2001, so it clearly occurred while the one-year guaranty was in effect. Furthermore, the indemnification clause states unambiguously that 4 Star agrees to indemnify the owner "from all claims, loss, damage, injury, causes of action, suits of whatsoever nature for personal injury, including death resulting there from . . . ." (emphasis added). Based on the date of the occurrence and the unconditional language of the indemnification provision, it is clear that 4 Star Contracting is obligated to indemnify the moving defendants for the costs incurred in defending this personal injury action.
Finally, we address co-defendants' Federated Department Stores and Douglaston Plaza's motion for summary judgment on their cross-claim for breach of contract against 4 Star Contracting. Co-defendants contend that 4 Star failed to procure insurance naming the owner as an insured, as required by the agreements. Defendant 4 Star opposes.
Moving defendants exhibit a letter from Ward Strategic Claims Solutions (Reply, Exhibit A). Said letter states that neither Douglaston Plaza (the owner), Arcadia Realty Trust (management) nor Yale University (also an owner) were added as additional insureds. In addition, moving defendants point out that 4 Star has failed to provide the policy or evidence that it procured insurance naming the owner as an additional insured.
Federated Department Stores and Douglaston Plaza have made out a prima facie case that 4 Star failed to procure the requisite insurance, and defendant 4 Star has not submitted any evidence which would show the existence of a genuine issue of fact regarding the issue. Accordingly, moving defendants are entitled to partial summary judgment in their favor on their claim for breach of contract against 4 Star. (See, e.g., Encarnacion v. Manhattan Powell L.P., 258 AD2d 339 [1st Dep't 1999]).
The motion for summary judgment of defendant 4 Star Contracting, Inc. seeking dismissal of plaintiff's complaint and all cross-claims is denied.
The amended motion for summary judgment of defendants Federated Department Stores, Inc. and Douglaston Shopping Center, LLC is granted in part with respect to moving defendants' claim for contractual indemnification as against co-defendant 4 Star Contracting, Inc. and for breach of contract for failing to procure insurance. However, the motion for summary judgment to dismiss plaintiff's complaint is denied.
The foregoing constitutes the decision and order of the court.