Turner v. Birchwood on the Green Owners Corp.

Full title: Deborah Ellen TURNER, Plaintiff, v. BIRCHWOOD ON THE GREEN OWNERS CORP.…

Court: Supreme Court, Queens County, New York.

Date published: Mar 12, 2018

59 Misc. 3d 1214 (N.Y. Sup. Ct. 2018)

98 N.Y.S.3d 503

Opinion

711901/2015

03-12-2018

Deborah Ellen TURNER, Plaintiff, v. BIRCHWOOD ON THE GREEN OWNERS CORP., Kaled Management Corp., and HP Maintenance & Construction, Inc., Defendants.

Robert J. McDonald, J.

The following electronically filed documents read on this motion by defendant HP MAINTENANCE & CONSTRUCTION, INC. for an Order pursuant to CPLR 3212, granting defendant HP MAINTENANCE & CONSTRUCTION, INC. summary judgment and dismissing the complaint and all cross-claims against defendant HP MAINTENANCE & CONSTRUCTION, INC.:

Papers Numbered

Notice of Motion–Affirmation–Exhibits EF 34—48

Plaintiff's Affirmation in Opposition–Exhibits EF 65—70

Affirmation in Reply EF 71

Co–Defendants's Affirmation in Opposition EF 72—73

Affirmation in Reply EF 74

This is an action to recover damages for personal injuries allegedly sustained by plaintiff on March 3, 2015 when she slipped and fell on snow/ice on a walkway at 4730 Wilshire Lane, Oakdale, in Suffolk County, New York.

Plaintiff commenced this action by filing a summons and complaint on November 17, 2015. A supplemental summons and amended verified complaint was served on January 18, 2016. Issue was joined by service of defendant HP Maintenance & Construction Inc.'s (HP Maintenance) answer with cross-claims on May 10, 2016. Co-defendants Birchwood on The Green Owners Corp. (Birchwood) and Kaled Management Corp. (Kaled) joined issue by service of an answer on January 18, 2016 and an answer to the amended verified complaint with cross-claims on September 9, 2016. HP Maintenance now moves for summary judgment on the grounds that it did not perform, and was not obligated to perform, snow or ice removal on the date of the incident. HP Maintenance also seeks dismissal of co-defendants' cross-claims seeking indemnification and contribution.

Plaintiff appeared for an examination before trial on November 30, 2016. She testified that the incident occurred on March 3, 2015 at approximately 7:30 a.m. in an area that leads to the parking lot, just in front of building K on the pavement. It was not snowing that day. There was snow on the ground at the apartment complex. The incident occurred on a Tuesday and it had last snowed a couple days prior. At the time of the incident, there was approximately an inch or less of snow. Between Friday and Tuesday, when she fell, there were two snowfalls. The first snowfall occurred between Friday and Monday and left about three of four inches. She did not observe snow removal after either snowstorm. She did not complain to anyone that snow had not been removed. On the morning of the incident, she left her apartment, turned right, and walked along a sidewalk until she reached the steps that go to the laundry room. She walked a distance of about 100 feet. There was snow on the sidewalk and on the ground. The snow had melted. It did not appear that the sidewalk had been cleared of snow. She did not have any difficulty walking along the 100 feet of sidewalk. She walked down nine steps toward the laundry room. There was light snow on the steps. She did not have any difficulty walking down the steps. She then went up another set of nine steps to get to the parking lot area. The steps had light snow on them. When she reached the area right in front of the parking lot, she took four steps on a cement surface. There was light snow, but she did not see any ice. It did not appear that the area had been shoveled, snow blown, or plowed. After walking four steps, her right foot slipped out from under her and she fell backward. A neighbor helped her up. She had to scoot on her backside and that is when she felt something rough. She looked back and underneath the little bit of snow. She saw old grey, patchy, thick ice with lumps exactly where she had fallen.

Christopher Szczepankski appeared for an examination before trial on behalf of defendant Birchwood on May 8, 2017. He testified that he is employed by Birchwood as a handyman. He has worked for Birchwood for seventeen years. He reports to the super, Eric Shabby. Art Hanson, who is now retired, was the prior super at the time of the subject incident. His duties include going to the super in the morning to find out what they are doing and where they are working. On occasion, he is required to clear snow or ice from the common areas of the property. In March 2015, Birchwood had snow blowers and shovels as well as calcium chloride and salt. Between November 2014 and March 2015, he and HP Maintenance would clear snow or ice. James Brown was the owner of HP Maintenance. Mr. Brown would personally do snow removal. Mr. Brown had a crew that worked for him. The handyman, porter, and HP Maintenance would remove snow with the responsibilities decided by the super. There were occasions when, given the relatively light amount of snowfall, HP Maintenance would not come and Birchwood's workers would handle the snow themselves. He normally worked 8:00 a.m. to 5:00 p.m. He would go in earlier to clean snow. The super would supervise and tell him where to go and what to do. In the winter of 2015, the custom and practice was to clear the sidewalks down to the concrete and then throw salt on them. For the parking lots they had snow blowers, a truck with a plow on it, and another sort of plow with a bobcat. In the winter of 2015, there were occasions when HP Maintenance workers would clear snow or ice from the sidewalk. As between HP Maintenance and Birchwood, there was no particular custom or practice regarding who would clean where. Rather, it depended on the depth of the snow and where everyone was working.

On September 29, 2017, James Brown appeared for an examination before trial on behalf of defendant HP Maintenance. He testified that he is the President and sole shareholder of HP Maintenance. He does not have employees. His business only performs snow removal for Birchwood. HP Maintenance has performed snow removal at Birchwood for the past nine years. The contract dated May 8, 2017 was his contract and he signed it. Pursuant to the contract, there was a fixed monthly charge of $5,000 whether or not it snowed with additional charges of $500 per plow for snowfalls from six to eight inches, $700 per plow for snowfalls from 8.1 inches to ten inches, and then $150 per inch for snow accumulations from 10.1 to 12 inches and for snow accumulations in excess of twelve inches. It was extra for sand, salt, and calcium chloride. Pursuant to the terms of the contract, HP Maintenance was not required to go to Birchwood if the snowfall was less than two inches. If there was a snowfall less than two inches, Birchwood's management would have to contact HP Maintenance to come to the premises. The contract included cleaning roadways and sidewalks. His secretary drafted the contract. He had no assistance from a lawyer in drafting the contract. Generally, he would not wait until all the snow had fallen before performing snow removal. He would head out if there was at least two inches on the ground and it was still snowing. He had five or six guys on a roster whom he would call and put on standby when he expected snow. The equipment they had included a pick up truck, a tractor, a couple of snow blowers, and shovels. They used calcium on the walkways and sand and salt on the roadways. He would personally go to Birchwood for a snow removal job. Regarding the subject walkway, he would use snow blowers and shovels to clear the area and to clean the concrete. Snow that was removed from the walkway was thrown on the grass on the sides of the walkways. The sidewalk would be cleared. The super or a maintenance guy would walk around Birchwood. If there was an icy condition, then they would call HP Maintenance. The super or porter would inspect as HP Maintenance was cleaning. Before leaving a job, he inspects the walkways by doing a walk through.

In support of the motion, HP Maintenance also submits a copy of the Snow Removal Contract dated September 4, 2014; invoices for snow removal services; a photograph of the location of the incident; and a certified weather report. The Snow Removal Contract provides for cleaning for unlimited snowstorms from two to six inches. The Contract specifically provides "Snowfall less than 2" may be cleared from roadways and sidewalks on request of management only for a cost of $1,800.00. There are (3) three events included for free." The invoices, dated March 1, 2015 and March 2, 2015, indicate the charges for the snow removal services. The March 1, 2015 invoice shows a breakdown of charges for a seven inch snow removal job that entailed the use of a front loader and sixteen shovelers, salt and sand on all roadways and lots, and calcium spread. The March 2, 2015 invoice was for additional services requested by Birchwood, which included using a front loader and salt/sand application to all roadways and lots. No sidewalk work was requested or performed by HP Maintenance on March 2, 2015. There is no invoice for the date of the incident. The certified weather report establishes that on March 1, 2015, snow fell from 11 a.m. to 1 p.m. Precipitation tapered off between 11 p.m. and 2 a.m. Snow totals measured between 5.5 to 6.0 inches.

Based on the submitted evidence, HP Maintenance contends, inter alia, that summary judgment is warranted as Contract was not an exclusive and comprehensive agreement which entirely displaced co-defendants' duty to maintain the premises safely. HP Maintenance further contends that it did not launch a force or instrument of harm as it did not perform, and was not obligated to perform, snow or ice removal on the date plaintiff was injured, and did not perform any snow removal services on the date prior to the incident in the area where plaintiff fell.

A movant for summary judgment must make a prima facie showing of entitlement by demonstrating that there are no material issues of fact (see Alvarez v. Prospect Hosp. , 68 NY2d 320 [1986] ). Once the movant satisfies this burden, then the burden shifts to the opposing party to present evidence in admissible form raising a triable issue of material fact (see Zuckerman v. City of NY , 49 NY2d 557 [1980] ). All reasonable inferences will be drawn in favor of the non-moving party (see Dauman Displays v. Masturzo , 168 AD2d 204 (1st Dept. 1990). "Where the court entertains any doubt as to whether a triable issue of fact exists, summary judgment should be denied" ( Daliendo v. Johnson , 147 AD2d 312 [2d Dept. 1989] ).

"[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 Contractors, Inc. , 98 NY2d 136, 140 [2002] [internal quotation marks and citations omitted] ).

Although HP Maintenance contends that it did not perform any snow removal on the date of plaintiff's incident, it is undisputed that HP Maintenance did perform snow removal at the location of plaintiff's incident on March 1, 2015, two days before the subject incident. Mr. Brown testified that on March 1, 2015, HP Maintenance cleaned the sidewalks and placed calcium on the sidewalk. HP Maintenance was required to maintain the sidewalks since there had been an accumulation of seven inches of snow. Based on such, HP Maintenance failed to establish that its snow removal efforts on March 1, 2015 did not "launch a force or instrument of harm" by creating or exacerbating the icy condition (see Rong Wen Wu Arniotes , 149 AD3d 786 [2d Dept. 2017] ; Perry–Renwick v. Giovanni Macchia Landscaping & Gardening, Inc. , 136 AD3d 772 [2d Dept. 2016] ; Smith v. NY City Hous. Auth. , 124 AD3d 625 [2d Dept. 2015] ). Moreover, HP Maintenance's argument that a wintry mix fell after it performed snow removal services is unpersuasive as the wintry mix fell after plaintiff's incident.

In any event, plaintiff's opposition, including the expert affidavit of George Wright, CCM dated January 5, 2018 and plaintiff's own testimony that she fell on ice that looked like it had been on the ground for a while, raises triable issues of fact regarding, inter alia, whether the ice upon which plaintiff slipped was formed when the snow pile created by HP Maintenance's snow removal efforts melted and refroze (see Knee v. Trump Vil. Constr. Corp. , 15 AD3d 545 [2d Dept. 2005] ; Cody v. DiLorenzo , 3034 AD2d 705 [2d Dept. 2003]; Baillet v. Auerbach , 277 AD2d 335 [2d Dept. 2000] ). Mr. Wright opines that if the snow and ice that accumulated on March 1, 2015 was completely removed from the subject platform and it was salted, the snow and ice that plaintiff slipped and fell upon would not have been present. He further states that there was no measurable precipitation of any kind at the premises from approximately midnight on March 1, 2015 through the time of the incident. The snow and ice condition that plaintiff slipped and fell upon was formed by the 5.1 to 5.6 inches of snow, sleet and freezing rain that occurred on March 1, 2015. Mr. Wright concludes that the snow and ice that plaintiff slipped and fell upon formed prior to midnight on March 1, 2015.

Regarding that branch of the motion seeking dismissal of co-defendants' indemnity claims, there is no provision in the contract obligating HP Maintenance to indemnify co-defendants. Thus, the cross-claims for contractual indemnification must be dismissed. However, since HP Maintenance did not demonstrate its entitlement to dismissal of plaintiff's claims against it, it failed to establish its entitlement to dismissal of co-defendants' cross-claim for contribution (see Nachamie v. County of Nassau , 147 AD3d 770 [2d Dept. 2017] ; Jones v. Rochdale Vil., Inc. , 96 AD3d 1014 [2d Dept. 2012] ).

Accordingly, and for the reasons stated above, it is hereby,

ORDERED, that the branch of defendant HP MAINTENANCE & CONSTRUCTION, INC.'s motion for summary judgment, seeking dismissal of the complaint is denied; and it is further

ORDERED, that the branch of defendant HP MAINTENANCE & CONSTRUCTION, INC.'s motion for summary judgment, seeking dismissal of the cross-claims is granted only to the extent that co-defendants' cross-claims seeking contractual indemnification are dismissed.