| Zemotel v Jeld-Wen, Inc. |
| 2008 NY Slip Op 03874 [50 AD3d 1586] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| Paul A. Zemotel et al., Respondents, v Jeld-Wen, Inc., DoingBusiness as Mr. 2nd's Bargain Outlet, Doing Business as Grossman's Bargain Outlet, Appellantand Third-Party Plaintiff-Appellant. Thomas Michels, Individually and Doing Business asSonny's Snowplowing and Lawn Service, Third-PartyDefendant-Respondent. |
—[*1] The Rothschild Law Firm, P.C., East Syracuse (Martin J. Rothschild of counsel), forplaintiffs-respondents. Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Brandon R. King of counsel), forthird-party defendant-respondent.
Appeal from an order of the Supreme Court, Onondaga County (Anthony J. Paris, J.), enteredSeptember 25, 2007 in a personal injury action. The order denied the cross motion ofdefendant-third-party plaintiff for summary judgment dismissing the complaint and granted themotion of third-party defendant for summary judgment dismissing the third-party complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained byPaul A. Zemotel (plaintiff) when he slipped and fell on ice beneath a puddle of water in the backlot of a store owned by defendant and third-party plaintiff (hereafter, Jeld-Wen). Supreme Courtproperly denied Jeld-Wen's cross motion for summary judgment dismissing the complaint.Jeld-Wen failed to meet its "initial burden of establishing that it did not create the dangerous[*2]condition that caused plaintiff to fall and did not have actualor constructive notice thereof" (Quinn vHoliday Health & Fitness Ctrs. of N.Y., Inc., 15 AD3d 857, 857 [2005]; see Kimpland v Camillus Mall Assoc.,L.P., 37 AD3d 1128 [2007]). In any event, even assuming, arguendo, that Jeld-Wen metits initial burden, we conclude that plaintiffs raised an issue of fact to defeat the motion. Contraryto Jeld-Wen's contention, the expert affidavit submitted by plaintiffs was not speculative and wasproperly based on data from the National Climatic Data Center (see CPLR 4528). Thataffidavit raised an issue of fact concerning Jeld-Wen's constructive notice of the allegeddangerous condition, i.e., whether that condition was present "for a sufficient length of time priorto the accident to permit [Jeld-Wen's] employees to discover and remedy it" (Gordon vAmerican Museum of Natural History, 67 NY2d 836, 837 [1986]).
We further conclude that the court properly granted the motion of third-party defendant(hereafter, Michels) for summary judgment dismissing the third-party complaint. With respect tothat part of the first cause of action seeking common-law contribution, Michels met its initialburden and Jeld-Wen failed to demonstrate how Michels "may be said to have assumed a duty ofcare—and thus be potentially liable in tort—to third persons" based on thesnowplowing contract with Jeld-Wen (Espinal v Melville Snow Contrs., 98 NY2d 136,140 [2002]). To the contrary, the record establishes that Michels could not plow or salt the backlot unless a Jeld-Wen employee unlocked a gate allowing him access to the back lot and that,when Michels had not plowed or salted, Jeld-Wen employees would shovel and salt the back lot.We thus conclude that Jeld-Wen failed to establish that Michels "owed [it] a duty of reasonablecare independent of its contractual obligations or that [Michels] breached a duty of due careowed directly to plaintiff[ ]" (Nizam v Friol, 294 AD2d 901, 902 [2002]; see Phillipsv Young Men's Christian Assn., 215 AD2d 825, 827 [1995]). Further, to the extent that thefirst cause of action is based on a theory of "implied indemnity," that theory also fails becauseJeld-Wen reserved authority to salt the back lot when needed, and that retention of responsibilityand control "defeats its implied indemnity claim as a matter of law" (Salisbury v Wal-MartStores, 255 AD2d 95, 98 [1999]). With respect to the second cause of action, for contractualindemnification, the contract does not contain an indemnification clause, and thus there is nobasis for the imposition of liability against Michels on that ground (see Rosado v Proctor &Schwartz, 66 NY2d 21, 25 [1985]). Present—Scudder, P.J., Hurlbutt, Centra, Greenand Gorski, JJ.