Opinion
Index No. 116562/2009 Motion Sequence #s 002-005
07-11-2013
MARY WETZLER, Plaintiff, v. SIMON PROPERTY GROUP, INC., THE HEARST CORPORATION, KADAN PRODUCTIONS INC., PERCEPTION AUDIO-VISUAL SERVICES, INC., SEVENTEEN MAGAZINE, HEARST BUSINESS PUBLISHING, INC., HEARST HOLDINGS, INC., and JC PENNEY, Defendants. JC PENNEY, Plaintiff, v. PROMETHEUS MEDIA, INC, and PROMETHEUS MEDICA, LLC, Defendants.
DECISION/ORDER
HON. CAROL ROBINSON EDMEAD, J.S.C.
MEMORANDUM DECISION
Motion Sequence #s 002-005 are consolidated for joint disposition and decided herein.
In this trip and fall personal injury action, defendant JC Penney Corporation Inc. ("JC Penney") moves for summary judgment dismissing the complaint of the plaintiff, Mary Wetzler ("plaintiff) and all cross-claims asserted against it, and for costs and attorneys' fees. (motion seq. 002).
Defendant Kadan Productions Inc. ("Kadan") also moves for summary judgment dismissing the complaint and all cross-claims asserted against it. (motion seq. 003).
Defendants The Hearst Corporation, Hearst Communications, Inc., i/s/h/a Seventeen Magazine, Hearst Business Publishing, Inc., and Hearst Holdings, Inc. (collectively, "Seventeen Magazine") also move for summary judgment dismissing the complaint and all cross-claims asserted against them (motion seq. 004). Defendant Simon Property Group, Inc. ("Simon") joins co-defendants' arguments and cross moves to dismiss plaintiff's complaint and all cross claims asserted against it, and opposes the branch of Seventeen Magazine's motion to dismiss Simon's contractual cross claims.
Defendant Perception Audio-Visual Services, Inc. ("Perception") also moves for summary judgment dismissing the complaint and all cross-claims asserted against it. (motion seq. 005).
Factual Background
On April 14, 2007, plaintiff tripped and fell inside the Roosevelt Field Mall in Long Island, New York (the "Mall") near J.C. Penney and commenced this negligence action against defendants.
At the time of the incident, plaintiff was with her daughter Marilyn Jestic ("Marilyn"), and Marilyn's children. According to plaintiff, at approximately 12:30 p.m. she and Marilyn saw that an event, the "Rock Your Prom" fashion show, was being set up. There was a T-shaped stage with white barriers to keep people from entering the stage (EBT, pp.35-37). There were also barriers which were similar to the ropes tied to poles used in banks (pp. 37-38). She estimated that there were about 200 people in the area of the stage that were evenly dispersed (p. 41).
She and her daughter decided to allow the children watch the show, and agreed to sit at the benches at a nearby carousel (pp. 33-34, 138). As plaintiff headed toward the benches, her right foot struck "something," causing her "body" to "leap" and go down on her left side (pp. 55-56). Her daughter came to her aid, and told plaintiff she saw her foot come into contact with a feeder cable (p. 64). Plaintiff testified that she did not see anything on the floor before or at the time of her accident (p. 132); she did not see the object that her foot came into contact with at any time before she tripped (p. 143). No one was walking in front of her before or at the time of the incident, and nothing blocked her vision (p. 147). Plaintiff was unaware of any complaints regarding the items which may have been on the floor (pp. 148-149). However, as she was lying on the floor, she heard someone mention that there was a prior accident in the area (p. 149).
According to Marilyn's deposition testimony, she saw a "feeder box" when she looked on the ground when her mother fell (EBT, pp. 34, 49). Marilyn stated that when she saw her mother stumbling, she did not observe any other people within her mother's vicinity (pp. 33-34). There was no one behind or in front of her mother when she started to stumble, as there "wasn't many people there" (pp. 34, 52-53). After plaintiff fell, someone told Marilyn that there had been prior incidents with people falling in that area (p. 70).
In support of dismissal, Simon argues that it leased the subject area to Seventeen Magazine for the purpose of holding the event, which had a duty to maintain such area in a save condition. Further, the deposition testimonies of the party and non-party witnesses and expert opinions show that the cable ramp was open and obvious, conformed with ANSI, New York's Building Code and industry practice, and that plaintiff's accident was not the result of inadequate security or overcrowding. In any event, Simon had no involvement with the planning and execution of the event. Further, even if the Court dismisses the complaint against Seventeen Magazine and/or Simon, Simon's cross claims against Seventeen Magazine should survive.
The Court notes that there is nothing in the testimonial evidence indicating that the accident was due to the failure of security to control an unruly crowd.
JC Penney argues that the deposition testimonies of the parties establish that JC Penney did not own or control the area where the incident occurred and did not cause or contribute to the defect over which plaintiff fell. JC Penney was only involved in the promotional event taking place at the Mall, but was not involved with setting up any equipment which allegedly caused plaintiff to fall.
Seventeen Magazine argues that it retained an independent contractor, Kadan, to produce the show, which in turn, hired Perception, an independent contractor, to supply and set up the sound equipment and wiring for the event, which was not set up in an unreasonable manner. Seventeen Magazine, which did not direct Kadan or Perception regarding the sound equipment, is not liable for the acts of the independent contractors. Thus, Seventeen Magazine owed no duty to the plaintiff, and if it did, such a duty was not breached. Further, Seventeen Magazine did not direct or control the manner in which ICP International security personnel performed their work. And, even assuming the cable ramp is what caused plaintiff to trip (which plaintiff failed to even identify as the cause of her fall), Seventeen Magazine did not create this alleged condition, or have notice of same, and the cable ramp was open and obvious, not inherently dangerous, and was a reasonable method of covering sound equipment wires and common industry standard. Further, the event was sufficiently covered by six security officers to control any crowds at the event.
Kadan argues that it only had a contract to provide audio and stage equipment, excluding the cable ramps at issue, and thus, did not owe a duty to the plaintiff. None of the exceptions creating a duty arising out of a contractual duty, i.e., whether defendant launched a force of harm, plaintiff detrimentally relied on Kadan's contractual responsibilities, or defendant entirely displaced another party's duty, exist to create any duty to the plaintiff on Kadan's part. Further, there was no dangerous or defective condition at the subject premises, and that even if an issue of fact existed as to whether there was a dangerous condition, Kadan did not cause or have actual or constructive notice of such condition. The fact that Kadan subcontracted with the contractor, Perception, which provided the cable ramp at issue, is insufficient to create any causal connection between Kadan and the alleged dangerous condition of the ramp, and did not render the ramp any less safe. Nor was Kadan contracted to provide crowd control or security or set up services. And, not only is plaintiff unable to identify what caused her fall, the ramp was open and obvious, and any defect as to the ramp and/or accident location are de minimus. Further, there is no evidence of crowding or poor lighting conditions. The cable ramp was reasonable and necessary at the event location.
Finally, Perception argues that plaintiff cannot establish her prima facie case of negligence because she failed to identify the dangerous or defective condition that caused her accident. Nor has plaintiff established that Perception created the alleged dangerous condition, or had notice of same. There is no evidence that the cable ramp was defective. Nor is there any evidence of prior complaints concerning the cable ramps. The ramps were open and obvious, and not inherently dangerous.
In opposition, plaintiff argues that there is sufficient evidence to establish that the cable ramp caused plaintiff's fall. Further, an object that is unexpected, obscured and/or where plaintiff's attention is diverted raises an issue of fact as to whether the condition is dangerous or hazardous. Plaintiff argues that the condition was both obscured by the crowds and plaintiff's attention was diverted by the stage, the activities around the stage, and the fact that her group was going in different directions. The location was an indoor mall, and there is nothing on the floor of the mall throughout the premises. Thus, one would never anticipate a three inch by two foot cable ramp on the floor. And, even if the condition is open and obvious, it only relieves the owner of the duty to warn of the condition, and does not obviate the duty to maintain the premises in a safe condition. There is an issue as to the whether the music could have been placed within the fenced in area, and as to whether warning signs alerting the public of the cable ramp was necessary.
As to Simon, plaintiff argues that "there were employees on a managerial and supervisory level" for Simon from early in the morning to 12:13 p.m. when the accident occurred, and therefore, Simon failed to show it lacked notice of the defect.
As to Seventeen Magazine, plaintiff argues that this defendant assumed the role of landlord, or at the least, an occupier of the space pursuant to its Lease Agreement with Simon. The Lease Agreement required Seventeen Magazine to maintain the space in good condition and was therefore obligated to refrain from creating any unsafe or dangerous conditions. Seventeen Magazine also owed plaintiff a duty as an organizer/promoter of the event. An issue of fact exists as to whether Seventeen Magazine breached its duty to the plaintiff to use reasonable care in the leased space.
As to JC Penney, JC Penney occupied the north court of the Mall, and therefore, was responsible, for keeping the are free from dangerous conditions. JC Penney was using the area as a marketing tool to sell its prom dresses, and created special areas to display its prom wear. The area used was adjacent to JC Penney to cause viewers of the event to purchase prom wear from its store. Therefore, since JC Penney made special use of the area, it is liable for any dangerous condition on the premises. The agreement between JC Penney and Seventeen Magazine shows that they had a joint venture to hold the event at the Mall, and requires the "Tenant" to maintain the space in good condition. As a sponsor of the event, JC Penney's motion grounded on the sole claim that it owed no duty to the plaintiff, must be denied.
As to Kadan, Kadan failed to show that it owed no duty to the plaintiff. Hemleb of Perception stated that Chris Martin from Kadan would discuss where everything was to be setup and directed where things should be placed (Exhibit I, pp. 22, 80). And, it was possible that Kadan put the cable ramp in its place. Additionally, there is no affidavit from Chris Martin, an employee present at the time of the accident. McConkey, who Kadan produced, never went to the incident location.
As to Perception, plaintiff argues that her expert opined that Perception's cable ramp as positioned at the event constituted a dangerous condition. Since Perception created the condition complained of, plaintiff need not establish that Perception had notice of same.
Discussion
Where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the "cause of action ... has no merit" (CPLR §3212[b]) sufficient to warrant the court as a matter of law to direct judgment in its favor (Bush v St. Claire's Hosp., 82 NY2d 738, 739 [1993]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Ivanov v City of New York, 21 Misc 3d 1148, 875 NYS2d 820 [Sup Ct, New York County 2008]). Thus, the proponent of such a motion must make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Melendez v Parkchester Med. Servs., P.C., 76 AD3d 927, 908 NYS2d 33 [1st Dept 2010]; Thomas v Holzberg, 300 AD2d 10, 11 [1st Dept 2002]). More specifically, a defendant in a personal injury action arising from an alleged dangerous condition on a premises must make a prima facie showing that it neither created the hazardous condition, nor had actual or constructive notice thereof (Manning v Americold Logistics, LLC, 33 AD3d 427, 822 NYS2d 279 [1st Dept 2006]; Mitchell v City of New York, 29 AD3d 372, 815 NYS2d 55 [1st Dept 2006]).
Once a defendant establishes prima facie entitlement to such relief as a matter of law, the burden then shifts to plaintiff to submit admissible evidence showing the existence of a triable issue of fact as to the creation of the dangerous condition or defect, or notice thereof (Kesselman v Lever House Rest., 29 AD3d 302, 816 NYS2d 13 [1st Dept 2006]; Bosman v Reckson FS Ltd. Partnership, 15 AD3d 517, 790 NYS2d 201 [2d Dept 2005]; CPLR §3212 [b]; Meridian Management Corp. v Cristi Cleaning Serv. Corp., 70 AD3d 508, 894 NYS2d 422 [1st Dept 2010]; Vermette v Kenworth Truck Co., 68 NY2d 714, 717 [1986]; Zuckerman, supra, 49 NY2d at 560, 562; Forrest v Jewish Guild for the Blind, 309 AD2d 546, 765 NYS2d 326 [1st Dept 2003]). And, the issue must be shown to be real, not feigned since a sham or frivolous issue will not preclude summary relief (Kornfeld v NRX Technologies, Inc., 93 AD2d 772 [1st Dept 1983], affd, 62 NY2d 686 [1984]). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Alvord and Swift v Steward M. Muller Constr. Co, 46 NY2d 276, 281-82, 413 NYS2d 309 [1978]; Cabrera v Rodriguez, 72 AD3d 553, 900 NYS2d 29 [1st Dept 2010]; Casper v Cushman & Wakefield, 74 AD3d 669, 904 NYS2d 385 [1st Dept 2010]).
Simon
It is undisputed that pursuant to a "Lease Agreement" between "Simon Property Group, L.P." as Landlord, and "Seventeen Magazine" as "Tenant," the space at issue was to be used for "the sole purpose of the Seventeen Magazine/JCPenney Rock Your Prom model call and Fashion Show[]." (Page 1). The Lease Agreement was executed solely by Simon and Seventeen Magazine, and required Seventeen Magazine to "maintain the Space and all portions thereof, in good condition and repair, at Tenant's sole cost and expense." (2(d)). The Lease Agreement also required that Seventeen Magazine "shall not. . . permit anything to be done in or about the Space or appurtenant common areas which would constitute a nuisance or hazard, or which will in any way obstruct or interfere with the rights of other tenants or occupants of the Shopping Center or injury or annoy them. Tenant [ Seventeen Magazine] shall not obstruct the free flow of pedestrian ... traffic on ... any other area regularly used for such traffic within the Shopping Center . . . ." (2(f)).
"A landlord is not generally liable for negligence with respect to the condition of property after its transfer of possession and control to a tenant unless the landlord is either contractually obligated to make repairs 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" (Howard v Alexandra Rest., 84 AD3d 498, 922 NYS2d 386 [1st Dept 2011]; Babich v R.G.T. Restaurant Corp., 75 AD3d 439, 906 NYS2d 528 [1st Dept 2010]; Romano v Browne, 180 AD2d 515, 579 NYS2d 400 [1st Dept 1992] ("a landlord is not liable for injuries sustained by third parties on the demised premises after possession has been transferred to the tenant, unless the landlord has covenanted to maintain or repair the premises [citations omitted]")). There is no indication in the testimonial record or in the Lease Agreement that Simon had any responsibility to maintain or repair the subject area, or retained a right to reenter, inspect, and make needed repairs at Seventeen Magazine's expense, during the period when the subject space was leased to Seventeen Magazine. The Lease Agreement expressly required Seventeen Magazine to maintain the subject area in good repair. And, according to the undisputed testimony of Simon's General Manager, Nadine Nakamara, Simon had no involvement with the planning or staging of the event (pp. 28-29), or with the supervision of the security staff (pp. 45-46). Simon's Director of Marketing and Business Development, Nancy Gilbert, testified that Simon did not provide any equipment for the event (p. 36), and never gave any instructions to the security staff (pp. 52-53). Therefore, in light of these undisputed facts, Simon cannot be held liable for plaintiff's injuries (see Lewis v Sears, Roebuck and Co., 35 AD3d 273, 826 NYS2d 243 [1st Dept 2006]).
Even assuming Simon owed plaintiff a duty to maintain the premises in a safe condition, Gilbert stated that Simon had no prior complaints regarding the placement of equipment or cable ramps (EBT, p. 20). In order to recover damages for a breach of a landowner's duty to maintain its property in a reasonably safe condition, a party must establish that the landlord created, or had actual or constructive notice of the hazardous condition which precipitated the injury (Zuk v Great Atlantic & Pacific Tea Co., Inc., 21 AD3d 275, 799 NYS2d 504 [1st Dept 2005] citing Piacquadio v Recine Realty Corp., 84 NY2d 967, 969, 622 NYS2d 493 [1994] and Mejia v New York City Tr. Auth., 291 AD2d 225, 226, 737 NYS2d 350 [2002]). Simon did not place the cable ramp on the Mall floor or the barriers around the stage, and thus, cannot be said to have "created" such condition. And, Simon's General Manager, Nadine Nakamara, likewise testified that there were no prior accidents or complaints regarding the cable ramps (EBT, ¶63). Plaintiff's conclusory claim that there were Simon employees" at the premises is plainly insufficient to establish that Simon was on actual or constructive notice of any dangerous condition, especially in light of Gilbert's testimony that she was not present when the cable ramp was being installed (pp. 49-50). The conclusory assertion that plaintiff's daughter was told by an unidentified person at the event of a prior similar incident is insufficient to establish that Simon was on notice of any dangerous condition that caused plaintiff's injuries. Therefore, Simon's motion for summary judgment dismissing the complaint and all cross claims as asserted against it is warranted.
Seventeen Magazine
The Court notes that contrary to Seventeen Magazine's contention, plaintiff submitted sufficient evidence to raise an issue of fact as to whether the cable ramp caused her fall. Although plaintiff could not identify what exactly caused her fall, she testified that her foot came "in contact with something" which caused her to leap forward (EBT, pp. 55-56), and her daughter stated that she "saw her trip over that feeder box and stumble and fly" (EBT, p. 40) (see Clark v Jay Realty Corp., 94 A.D.3d 635, 942 N.Y.S.2d 355 [1st Dept 2012] (denying summary judgment where although "plaintiff could not state with certainty what caused her fall, she testified that she fell after her right foot hit 'a raised area' and that the defect was '[a] curb-like raise'"; and the witness walking with plaintiff testified he saw her fall and land "on the subject sidewalk flag")). That plaintiff's daughter also testified that she had been looking elsewhere when her mother began falling raises an issue of credibility to be assessed by the trier of fact.
Further, dismissal based on the claim that the cable ramp was an open and obvious condition that was not inherently dangerous is unwarranted. Under First Department caselaw, a "hazardous condition to be open and obvious is not fatal to a plaintiff's negligence claim, but rather is relevant to plaintiff's comparative fault, and hence summary judgment dismissal is not appropriate" (Saretsky v 85 Kenmare Realty Corp., 85 AD3d 89, 924 NYS2d 32 [1st Dept 2011]). "More significantly, 'even visible hazards do not necessarily qualify as open and obvious" because the "nature or location of some hazards, while they are technically visible, make them likely to be overlooked'" (Saretsky v 85 Kenmare Realty Corp., supra, citing Westbrook v WR Activities-Cabrera Mkts., 5 AD3d 69, 72, 773 NYS2d 38, 41 )). Although many witnesses testified to the visible nature of the cable ramp, plaintiff submits evidence indicating that the fact that her attention was drawn to the event and her family, the number of people within her vicinity, and the fact that cable ramps do not ordinarily appear on the floors in the common areas of the Mall, which is sufficient to raise an issue of fact as to whether the cable ramp was open and obvious. In any event, assuming the cable ramp was open and obvious, as the caselaw above holds, such finding does not warrant dismissal of plaintiff's action.
Further, Seventeen Magazine's claim that the cable ramp did not constitute a dangerous or defective condition, as a matter of law, lacks merit (see infra, discussion regarding Perception, pp. 19-20).
However, it is undisputed that Seventeen Magazine, the "Tenant" of the leased space, hired Kadan, to produce the show, and that Kadan hired Perception to supply and set up the sound equipment and wiring for the event.
"As a general rule, a principal is not liable for the acts of an independent contractor because principals ordinarily do not control the manner in which independent contractors, as opposed to employees of the principal, perform their work" (Goodwin v Comcast Corp., 42 AD3d 322, 840 NYS2d 781 [lst Dept 2007] citing Chainani v Board of Educ. of City of N. Y, 87 NY2d 370, 380-381, 639 NYS2d 971, 663 NE2d 283 [1995]). "Control of the method and means by which work is to be performed, therefore, is a critical factor in determining whether a party is an independent contractor or an employee for the purposes of tort liability" (Goodwin v Comcast Corp., supra, citing Harjes v Parisio, 1 AD3d 680, 680-681, 766 NYS2d 270 [2003], lv. denied 1 NY3d 508, 777 NYS2d 17, 808 NE2d 1276 [2004]). "While such determination typically involves a question of fact, in those instances where the evidence on the issue of control presents no conflict, the matter may properly be determined by the court as a matter of law (Goodwin v Comcast Corp., supra citing Zedda v Albert, 233 AD2d 497, 498, 650 NYS2d 301 [1996] (internal citations omitted)).
Here, Seventeen Magazine established, as a matter of law, that it hired Kadan as an independent contractor for the event. According to Seventeen Magazine's Merchandising Manager, Christina Dasher, Seventeen Magazine "organized" the "Rock Your Prom" program at the Mall (EBT, pp. 13, 28), and worked with its client, JC Penney, who advertised in Seventeen Magazine (pp. 28-29). Dasher hired Kadan to provide the "audio, stage, backdrop. And a sound technician" (pp. 33, 44). Dasher did not know who set up the cable ramp (pp. 83-84), and did not supervise or direct the placement of the cable ramps (pp. 129-130). Nor did Dasher know who decided how the cables were to be run from the audio to the stage (p. 133).
Kadan's owner, Michael McConkey, confirmed that Seventeen Magazine hired Kadan to provide the stage and backdrop (EBT, p. 10). Kadan did not have any sound equipment of its own, and hired Perception to provide the lighting and sound (pp. 11,14-15). Kadan would not have had cable ramps at the event (p. 19). Instead, the cable ramps on this project would have been installed by Perception (p. 33). In this regard, Perception's audio engineer Todd Hemleb, confirmed at his deposition that the cable ramps were brought to the event on "the Perception truck" (pp. 31-32), and that either he or someone else from Perception was "laying out cable and putting up audio and visual equipment." (p. 101).
Based on the record, there is no indication that Seventeen Magazine exercised any control over the method or mariner in which the cable ramps were placed at the event. Therefore, summary judgment dismissing the complaint against Seventeen Magazine is warranted (Flagship Intern. Corp. v Dennelisse Corp., 38 AD3d 307, 833 NYS2d 3 [1st Dept 2007] (stating that the building's owner's lessee was entitled to summary dismissal based on the alleged negligence of its independent contractor, whose installation work allegedly caused fire damage to third-parties' properties)).
As to Simon's assertion that its contractual cross-claims against Seventeen Magazine should survive, it is noted that Simon failed to articulate any basis for this claim. Further, as pointed out by Seventeen Magazine in reply, Seventeen Magazine has a contractual obligation to indemnify Simon for liabilities arise out of "any act or omission" of Seventeen Magazine, or "any occurrence which takes place in or about the Space as a result of [Seventeen Magazine's] negligence or wilfull misconduct." Based on the record, Seventeen Magazine has no duty under its contract to indemnify Simon.
Therefore, as Seventeen Magazine cannot be held liable for plaintiff's injuries, dismissal of the complaint and all cross-claims against Seventeen Magazine is warranted.
J.C. Penney
"Liability for a dangerous condition on property may only be predicated upon occupancy, ownership, control or special use of such premises" (Jackson v Board of Educ. of City of New York, 30 AD3d 57, 812 NYS2d 91 [1st Dept 2006] citing Gibbs v Port of Auth. of NY, 17 AD3d 252, 254, 794 NYS2d 320 [2005]). The record establishes that JC Penney did not own the subject space, and did not lease such space. Nor is there any indication in the record that JC Penney controlled the space or the event being held at the space.
Instead, according to Dasher of Seventeen Magazine, "Seventeen and J.C. Penney ... were putting this program on together" (Dasher EBT, p. 29). However, apart from being promoted at the event to increase sales of its merchandise, the record establishes that JC Penney did not hire any of the parties responsible for the audio or cable ramp installation at the event. Specifically, Hemleb testified that he did not speak to anyone or receive any instructions from JC Penney as to how to lay the equipment or as to how to perform his tasks (EBT, p. 92). Contrary to plaintiff's contention, the Media Services Agreement between JC Penney and Prometheus Media Inc. for the latter to act as JC Penney's agent regarding media related services fails to show that JC Penney (through such agent) entered into any agreement with Seventeen so as to impose a duty upon JC Penney as to the common area where the event was held.
Further, JC Penney is not a signatory to the Lease Agreement between Seventeen Magazine and Simon for the leased space at issue, and therefore, did not have an obligation under this lease to maintain the leased space in good condition. That the Lease Agreement was intended to benefit JC Penney by encouraging event attenders to patronize the store does not convert the Lease Agreement into a joint venture between JC Penney and/or Seventeen Magazine. The record fails to show any indicia of a joint venture between these two entities (American Business Training Inc. v. American Management Ass'n, 50 AD3d 219, 851 NYS2d 491 [1st Dept 2008] ("Among the indicia of a joint venture are the intention of the parties and acts manifesting their intent to be associated as joint venturers, such as sharing of profits and losses, and ownership of partnership assets"); Richbell Info. Servs. v Jupiter Partners, 309 AD2d 288, 298, 765 NYS2d 575 [1st Dept 2003] ("acts manifesting the intent of the parties to be associated as joint venturers, mutual contribution to the joint undertaking through a combination of property, financial resources, effort, skill or knowledge, a measure of joint proprietorship and control over the enterprise, and a provision for the sharing of profits and losses")).
And, even assuming the special use doctrine applied to JC Penney as a result of its signs and displays in the subject areas, there is no evidence that the alleged dangerous condition was caused by such use of the space (O'Brien v Prestige Bay Plaza Development Corp., 103 AD3d 428, 959 NYS2d 193 [1st Dept 2013], citing Balsam v Delma Engineering Corp., 139 AD2d 292, 532 NYS2d 105 [1st Dept 1988] (rejecting the application of the special use doctrine against defendant, and stating that the "display of [defendant's] signs and logos at the [gas] station is an insufficient basis upon which to impose a duty of care, since such display merely indicates that [defendant's] products were sold at the station")).
Plaintiff's caselaw is unavailing.
Therefore, summary judgment dismissing the complaint against JC Penney is warranted.
However, JC Penney's application for attorneys' fees and costs is unwarranted. Under the general rule, attorneys' fees "are incidents of litigation and a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule" (Gotham Partners, L.P. v High River Ltd. Partnership, 76 AD3d 203, 906 NYS2d 205 [1st Dept 2010]; Braithwaite v 409 Edgecombe Ave. HDFC, 294 AD2d 233, 234 [1st Dept 2002]). There is no showing of any agreement between the parties, statute or court rule warranting attorneys' fees and costs against plaintiff.
Kadan
It is well-established that an independent contractor does not owe a duty of care to a non-contracting third party (i.e., the plaintiff) unless the contractor either creates or increases an unreasonable risk of harm; or where the injured third party reasonably relied upon the contractor's continuing performance arising out of a contractual obligation, or where the contractor has entirely displaced the other party's duty to maintain the premises safely (Timmins v Tishman Constr. Corp., 9 AD3d 62, 66 [1st Dept 2004]).
Here, the record establishes that Seventeen Magazine (the "tenant" of the subject space) contracted with Kadan to provide the "audio, stage, backdrop." (Dasher EBT, pp. 33, 44). However, although McConkey (who testified on behalf of Kadan) was not present during the event, he testified that Kadan did not have any sound equipment in 2007, and hired Perception to provide the lighting and sound (McConkey EBT, pp. 11, 14-15). He further stated that Kadan did not have any cable ramps at the event (p. 19). Instead, the cable ramps were installed by Perception (p. 33). In this regard, Perception's audio engineer Todd Hemleb, confirmed that the cable ramps were brought to the event on "the Perception truck" (Hemleb EBT, pp. 31-32), and that either he or someone else from Perception was "laying out cable and putting up audio and visual equipment." (EBT, p. 101). Further, Kadan was not hired to perform any crowd control. Therefore, Kadan established, as a matter of law, that it did not owe a duty of care to plaintiff, a non-contracting third party, and did not create or increase an unreasonable risk of harm as to the cable ramp or security crowd control. Kadan also established that plaintiff did not rely on Kadan's contractual duties and that Kadan did not displace Seventeen's duty to maintain the premises safely.
In opposition, plaintiff failed to raise an issue of fact indicating that Kadan created or increased an unreasonable risk of harm, or that plaintiff reasonably relied upon Kadan's continuing performance of its contractual duties, or that Kadan entirely displaced Seventeen Magazine's duty to maintain the subject area in good repair. The portions of the testimony by Mr. Hemleb of Perception upon which plaintiff relies fail to indicate that "Chris" from Kadan, who was present at the event, directed or controlled the manner in which Hemleb was "laying out cable and putting up audio and visual equipment" (Hemleb EBT, 101). And, that Chris had discussions with Hemleb about putting "stuff up here and here" is insufficient. Further, Chris's discussions with Hemleb pertaining to where to set up the mixer are irrelevant, since plaintiff's accident had nothing to do with the mixer.
While Kadan points out in reply that plaintiff's opposition was untimely, Kadan had an opportunity to address, and in fact addressed the arguments raised in opposition. Therefore, the Court denies Kadan's request that the Court reject plaintiff's opposition (Marte v City of New York, 102 AD3d 557, 957 NYS2d 864 [1st Dept 2013] (holding that the motion court properly considered the opposition papers, "given that plaintiff has not shown prejudice by the late service, and had, in fact, submitted reply and supplemental reply affirmations")).
It is also noted that a "principal can be held vicariously liable for the acts of an independent contractor if '[it] is negligent in selecting, instructing or supervising the independent contractor; where the independent contractor is hired to do work which is 'inherently dangerous'; and where the [principal] bears a specific, non-delegable duty'" (Adams v Hilton Hotels, Inc., 13 AD3d 175, 787 NYS2d 238 [1st Dept 2004]). Here, none of these exceptions is applicable to this case.
Therefore, dismissal of the complaint as against Kadan is warranted.
In light of this Court's finding that Kadan owed no duty to plaintiff concerning the cable ramp or crowd control based on its contract with Seventeen Magazine, whether Kadan had notice of any dangerous condition is irrelevant. It is noted that Kadan failed to establish as a matter of law its alternative claims that the cable ramp constituted a non-actionable trivial defect, and constituted an open and obvious condition. Kadan cites to uncontrolling and factually distinguishable caselaw, which are factually inapposite to caselaw in the First Department (see supra, p. 12). The "open and obvious nature of an obstacle or defect simply negates the property owner's duty to warn of it; 'it does not eliminate the property owner's duty to ensure that its property is reasonably safe' (Lawson v Riverbay Corp., 64 AD3d 445, 446, 883 NYS2d 199 [2009]). Thus, summary judgment on these grounds is denied.
Perception
Perception's claims that (1) plaintiff failed to identify the defective condition that caused her accident and that (2) that the alleged condition was open and open condition that plaintiff should have seen, lack merit for the reasons stated above, and dismissal on these grounds is unwarranted.
Further, as to Perception's claim that there is no showing that the cable ramp constituted a dangerous or defective condition of which Perception had notice, the Court finds that issues of fact exist as to whether the cable ramp constituted a dangerous condition under the circumstances. Although Perception established, through the testimony of Anthony Robertson (security officer), Mr. Hemleb, and McConkey that the cable ramp, which consisted of black sides and an orange top, was OSHA approved, and a highly visible safety measure widely used to prevent patrons from tripping over wires, plaintiff's expert opines that the cable ramp, approximately 3 inches from the ground, and surrounded by people, which should have been colored entirely yellow, constituted a dangerous condition. While the record indicates that there was nothing blocking plaintiff's vision of the floor as she was walking, she also stated that there were "people to the left of me, people to the right of me. . . ." (EBT, p. 147), that "I scanned the stage to see what was going on" (EBT, p. 148), that she was looking "straight ahead" (EBT, p. 48) and that she could not recall if she ever looked at the ground as she was walking toward the benches (EBT, p. 49). Expert affidavits which present a conflicting opinion raises issues of fact and credibility that cannot be resolved on a motion for summary judgment (Ocampo v Boiler, 33 AD3d 332, 822 NYS2d 52 [1st Dept 2006]; Bradley v Soundview Healthcenter, 4 AD3d 194, 772 NYS2d 56 [2004]). The claim, in reply, that plaintiff expert opinion lacks merit because he relies on outdated statutes is insufficient to establish that the cable ramp, under the circumstances herein, did not constitute a dangerous condition as a matter of law.
As such, given that Perception installed the cable ramp at issue, whether it lacked notice of the alleged dangerous condition of the cable ramp is of no moment.
Therefore, dismissal of the complaint against Perception is unwarranted.
Conclusion
Based on the foregoing, it is hereby
ORDERED that the motion by JC Penney Corporation Inc. for summary judgment dismissing the complaint of the plaintiff, Mary Wetzler and all cross-claims asserted against it, and for costs and attorneys' fees (motion seq. 002) is granted solely to the extent that the complaint and all cross-claims asserted against JC Penney Corporation Inc. are severed and dismissed; and it is further
ORDERED that the motion by Kadan Productions Inc. for summary judgment dismissing the complaint and all cross-claims asserted against it (motion seq. 003) is granted, and the complaint and all cross-claims asserted against Kadan Productions Inc. are severed and dismissed; and it is further
ORDERED that the motion by defendants The Hearst Corporation, Hearst Communications, Inc., i/s/h/a Seventeen Magazine, Hearst Business Publishing, Inc., and Hearst Holdings, Inc. for summary judgment dismissing the complaint and all cross-claims asserted against them (motion seq. 004) is granted, and the complaint and all cross-claim asserted against them are severed and dismissed; and it is further
ORDERED that the cross-motion by Simon Property Group, Inc. to dismiss plaintiff's complaint and all cross claims asserted against it is granted, and the complaint and all cross claims asserted against Simon Property Group, Inc. are severed and dismissed; and it is further
ORDERED that the motion by Perception Audio-Visual Services, Inc. for summary judgment dismissing the complaint and all cross-claims asserted against it (motion seq. 005) is denied; and it is further
ORDERED that Perception Audio-Visual Services, Inc. serve a copy of this order with notice of entry upon all parties within 20 days of entry; and it is further
ORDERED that the Clerk may enter judgment accordingly.
This constitutes the decision and order of the Court.
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Hon. Carol Robinson Edmead, J.S.C.