| Imtanios v Goldman Sachs |
| 2007 NY Slip Op 07489 [44 AD3d 383] |
| October 9, 2007 |
| Appellate Division, First Department |
| Nehme Imtanios, Respondent, v Goldman Sachs et al.,Defendants and Third-Party Plaintiffs-Respondents. American Building Maintenance Co.,Third-Party Defendant-Appellant. |
—[*1] Wilson Elser Moskowitz Edelman & Dicker, LLP, New York (Marc R. Tortora of counsel),for Goldman Sachs and Jones Lang LaSalle Management, Inc., respondents.
Order of the Appellate Term of the Supreme Court of the State of New York, FirstDepartment, entered on or about November 18, 2005, which reversed an order of Civil Court,New York County (Geoffrey D. Wright, J.), entered December 30, 2004, and reinstated thecomplaint against defendants Goldman Sachs and Jones Lang LaSalle Management, Inc. (JonesLang) and the third-party complaint against American Building Maintenance Company (ABM),reversed, on the law, without costs, and the complaint and third-party complaint dismissed. TheClerk is directed to enter judgment accordingly.
In this action to recover damages for personal injuries, plaintiff Nehme Imtanios, a porteremployed by ABM, alleges that in May 2000, as he was taking out the trash at the premisesoccupied by Goldman Sachs at 85 Broad Street, he slipped on a metal computer part that hadbeen left on the floor. Jones Lang, the property manager for the premises, had hired ABM toperform cleaning and janitorial services at the location. Jones Lang entered into a serviceagreement on behalf of Goldman Sachs with ABM for that purpose.
According to the service agreement, ABM was to provide trash removal, and maintenance ofcommon areas and freight elevator areas. ABM agreed to indemnify Goldman Sachs for anyclaims arising out of ABM's negligent performance of its duties or out of any breach by ABM ofthe terms of the service agreement.
Plaintiff, who had worked for ABM for 11 years, testified at his deposition that his dutiesincluded going into the bathrooms and pantries to remove trash and to bring it to the freightelevator area on each floor. Plaintiff testified that on the day of the accident, he entered thefreight elevator area with trash and saw that there were computer parts, such as monitors,keyboards, mouse pads, and wires on the floor near the elevator, in front of the trash bin. As he[*2]walked to the bin to place the trash in it, he slipped and fellon a metal computer part.
In June 2001, plaintiff commenced this action against Goldman Sachs and Jones Lang,alleging that they had been negligent in, inter alia, maintenance of the premises. In May 2003,defendants commenced a third-party action against ABM, asserting claims for, inter alia,contribution and contractual indemnification.
In December 2004, the Civil Court granted defendants' summary judgment motion to dismissplaintiff's complaint against them. In so doing, the court found that the computer parts on thefloor near the freight elevator constituted an open and obvious condition. Further, the courtfound, the items on the floor were "part of or inherent in" the very work being performed. Boththese conclusions, the court found, foreclosed any claim of negligence against Goldman Sachs orJones Lang. Consequently, the court also dismissed the third-party action against ABM.
In November 2005, Appellate Term reversed, finding that although the condition that causedplaintiff's injury may have been open and obvious, that condition "only eliminated defendants'duty to warn of the hazardous condition; it did not negate their broader duty to maintain theworkplace in a reasonable safe condition." Thus, Appellate Term found, plaintiff's failure toobserve the metal computer part went only to the question of comparative negligence. Further,the court found that issues of fact remained as to whether defendants were negligent in creatingor failing to remedy the situation of computer parts on the floor, particularly in view of thedeposition testimony stating that the ABM cleaning staff was unable to remove computer partswithout prior authorization from Goldman Sachs. Finally, the court found that, with respect todefendants' indemnification claim against ABM, issues of fact remained which precludedsummary judgment under the specific terms of the contract.
ABM now appeals from the order reinstating the third-party claim against it. With respect tothe third-party complaint, ABM argues that because Goldman Sachs and Jones Lang did not filean appeal from that part of the Civil Court order dismissing the third-party action with thecomplaint, the Appellate Term erred in reinstating their third-party action against ABM onplaintiff's appeal. However, as Goldman Sachs and Jones Lang correctly assert, the Civil Courtorder, in granting their motion for summary judgment in the main action, of necessity dismissedthe third-party action against ABM without addressing that action's merits, as the action wasrendered academic by dismissal of the main action (see e.g. Adamczyk v Hillview EstatesDev. Corp., 229 AD2d 940 [1996], lv denied 89 NY2d 801 [1996]).
Goldman Sachs and Jones Lang further assert that, since they were not aggrieved by the CivilCourt's order they had no standing to file a notice of appeal from the order, and had they filedone, the Appellate Term could not properly have entertained it (see TAG 380, LLC v ComMet 380,Inc., 40 AD3d 1, 9-10 [2007]).
Had Appellate Term correctly reversed the order of the Civil Court as to defendantsGoldman Sachs and Jones Lang, it would have been correct also in reinstating the third-partyclaim against ABM. We find, however, that Appellate Term erred in reinstating the complaint asagainst the defendants.
While it is true that defendants generally have a duty to provide plaintiff with a safeworkplace, open and obvious hazards notwithstanding (see DeJesus v F.J. Sciame Constr. Co., Inc., 20 AD3d 354 [2005]),this case is largely controlled by our recent holding in Jackson v Board of Educ. of City of N.Y. (30 AD3d 57 [2006]).
In Jackson, the plaintiff was employed by Aramark Educational Services, theexclusive food services contractor for the Fashion Institute of Technology (FIT). The plaintiffwas responsible for sweeping and mopping the same area where he was later injured when heslipped [*3]and fell on a food substance. We held in Jacksonthat "since it was plaintiff's job to clean the floor of the type of foreign substance (vegetablematter) that he slipped on, FIT owed him no duty to keep the floor clean of such material"(Jackson, 30 AD3d at 63).
In the instant case, plaintiff was employed as a porter by ABM which was responsible for thecleaning and janitorial services of the premises. The contract between Goldman Sachs and ABMprovided, among other things, that ABM was to clean the "CommonSpace—including elevator and freight lobbies." Plaintiff slipped and fell on a metalcomputer piece in the area which his employer was responsible for keeping free of debris. Whileplaintiff testified that his duties were limited to removing trash from receptacles and taking it tothe freight elevator, his job entailed placing it in trash bins located in an area where trash wasusually discarded. The record establishes that the plaintiff's job necessarily entailed walking near,or through, discarded computer parts and other debris. Contrary to the dissent's viewpoint, thehazard of falling on such debris was inherent to plaintiff's job (see e.g. Anderson v BushIndus., 280 AD2d 949 [2001] [finding that hazard of injury from repeatedly lifting heavyboxes and loading them into a truck inherent in the work of a UPS driver]; see also Marin vSan Martin Rest., 287 AD2d 441 [2001] [hazard of injury from lifting a heavy garbage bagand loading it into a sanitation truck inherent in the work of a sanitation worker]). Thus,defendants Goldman Sachs and Jones Lang owed no duty to plaintiff to keep the floor clean sothat the plaintiff could perform his job to clean the premises. Such a view would lead inexorablyto the absurd conclusion that defendants' duty was to hire a cleaning service to clean the premisesfor the cleaning service. Concur—Nardelli, Gonzales, Sweeny and Catterson, JJ.
Saxe, J.P., dissents in a memorandum as follows: I would affirm the order of AppellateTerm, which reinstated the complaint against defendants Goldman Sachs and Jones Lang LaSalleManagement, Inc., along with their third-party complaint against American BuildingMaintenance.
Plaintiff alleges that in the course of his employment as a porter for American BuildingMaintenance, he fell and was injured when he slipped on a discarded computer part or accessorywhich he identified at his deposition as a metal mouse pad, one of a number of discardedcomputer parts that were strewn on the floor near the freight elevator.
Appellate Term properly held that since the open and obvious nature of a hazard does notnecessarily absolve defendants of the duty to provide plaintiff with a safe workplace (see Mizell v Bright Servs., Inc., 38AD3d 267 [2007]; DeJesus v F.J.Sciame Constr. Co., Inc., 20 AD3d 354 [2005]; Garrido v City of New York, 9 AD3d 267 [2004]; Juoniene v H.R.H. Constr. Corp., 6AD3d 199, 201 [2004]), dismissal is not warranted by the mere assertion that the computerparts on the floor were open and obvious. Moreover, plaintiff's failure to observe and avoid thehazard could only be considered on the question of his comparative negligence (see DeJesusv F.J. Sciame Constr., 20 AD3d at 354; Garrido v City of New York, 9 AD3d at268). Indeed, plaintiff's acknowledgment that he had observed discarded computer parts lying onthe floor near the freight elevator before he slipped does not necessarily establish that he eithersaw or should have seen and avoided the particular item on which he slipped.
The Civil Court erroneously relied on cases which hold that a property owner's duty toemployees working at the site does not extend to hazards which are inherent in the work theemployee was hired to perform (see Gasper v Ford Motor Co., 13 NY2d 104, 110 [1963];Bombero v NAB Constr. Corp., 10AD3d 170, 171 [2004]). In such cases, the concept of an "inherent" hazard involves a riskthat is particular to that job, such as a sanitation worker's or [*4]UPS driver's obligation to lift heavy items (see Marin v SanMartin Rest., 287 AD2d 441 [2001]; Anderson v Bush Indus., 280 AD2d 949[2001]), or a construction site inspector's need to traverse steel reinforcement bars in order toinspect them (see Bombero v NAB Constr. Corp., supra). The risk of thepresence on the floor of discarded property is only "inherent" in plaintiff's job as a building porterto the same extent that it is inherent in the life of any person working in or passing through thebuilding. This hazard should be distinguished from a particular risk inherent in undertaking aparticular job, and cases applicable to such particular inherent risks are not controlling here.
The reinstatement of plaintiff's complaint properly warranted the reinstatement of defendants'third-party complaint against plaintiff's employer. [See 10 Misc 3d 126(A), 2005 NY SlipOp 51867(U).]