| Tamhane v Citibank, N.A. |
| 2009 NY Slip Op 03103 [61 AD3d 571] |
| April 23, 2009 |
| Appellate Division, First Department |
| Ravindra Tamhane et al.,Respondents-Respondents, v Citibank, N.A., Respondent-Appellant, Antonia GibneyCampbell, as Executrix of Fredric J. Warmers, Deceased, Appellant, and Temco ServiceIndustries, Inc., Appellant-Respondent, et al., Defendant. (And a Third-Party Action.) Citibank,N.A., Second Third-Party Plaintiff-Respondent-Appellant, v One Source Facility Services, Inc.,Second Third-Party Defendant, and Temco Service Industries, Inc., Second Third-PartyDefendant-Appellant-Respondent. Temco Service Industries, Inc., Third Third-PartyPlaintiff-Appellant-Respondent, v L.I.S.R., Inc., Third Third-PartyDefendant-Respondent-Appellant. Citibank, N.A., Fourth Third-PartyPlaintiff-Respondent-Appellant, v Temco Building Maintenance, Inc., Fourth Third-PartyDefendant-Appellant-Respondent. |
—[*1] White & McSpedon, P.C., New York (Michael Cannella of counsel), for Citibank, N.A.,respondent-appellant, and Antonia Gibney Campbell, appellant. Wade Clark Mulcahy, New York (William Kirrane of counsel), for L.I.S.R., Inc.,respondent-appellant. Arnold E. DiJoseph, III, New York, for respondents-respondents.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered March 26, 2008,that denied the motion of defendants Citibank, N.A. and Campbell to preclude testimony ofplaintiffs' experts, unanimously affirmed, without costs. Order, same court and Justice, enteredSeptember 17, 2008, which, insofar as appealed from, denied Citibank's motion for summaryjudgment dismissing the complaint as against it and for summary judgment on its claim forindemnification against defendant Temco Service Industries, Inc. and Temco BuildingMaintenance, Inc. (Temco), and denied Temco's and third third-party defendant L.I.S.R., Inc.'s(L.I.S.R.) motions for summary judgment dismissing all claims and cross claims against them,unanimously modified, on the law, to grant summary judgment to third-party defendant L.I.S.R.and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of thirdthird-party defendant L.I.S.R. dismissing the third third-party complaint and all cross claimsagainst it.
Plaintiff slipped at or close to the entranceway to the East Meadow branch of Citibank onSaturday morning March 4, 2006 on what he claimed was a transparent bit of ice. There was novisible snow or ice in the parking lot or near the entrance where he slipped.
Plaintiff and his wife sued Citibank and Citibank then served a third-party complaint againstTemco, its general maintenance and custodial services contractor. Plaintiffs then amended theircomplaint to cross-claim against Temco, who brought a third party action against L.I.S.R. (LongIsland Snow Removal). Citibank cross-claimed against L.I.S.R., the company that Temco hiredpursuant to an oral agreement to remove snow from Citibank's East Meadow branch. Theagreement between Temco and L.I.S.R., that had existed since 1994, provided that the latterwould clear snow from the parking lot and sidewalks and salt when at least one inch [*2]had fallen and would also come upon request. It is undisputed thatthere had been snow and rain on March 1 and 2 and that L.I.S.R. had shoveled and salted theparking lot and entrance area on March 2nd and returned upon request for further salting onMarch 3, 2006. L.I.S.R. completed the salting by 5:00 p.m. that day.
Plaintiffs' bill of particulars and their experts' affidavits aver that plaintiff slipped on ice thatformed because snow on the roof of the Citibank building and on a sign attached to the buildingmelted, causing water to drip onto the ground in front of the entranceway. The water then froze,causing a thin sheet of "invisible" ice to form.
The evidence that the ice upon which plaintiff slipped was formed by a longstandingthaw-refreeze condition is sufficient to raise triable issues of fact at to whether Citibank andTemco had constructive notice of the alleged ice condition (see Pasqua v Handels-En Productiemaatschappij De Schouw, B.V., 43AD3d 647 [2007], lv dismissed 10 NY3d 790 [2008]). Temco's contention that itowed no direct duty to plaintiff is unavailing, as the record contains evidence sufficient to raisetriable issues of fact whether Temco may have exacerbated the alleged recurring thaw-refreezecondition or had displaced Citibank's duty to maintain the premises safely (Espinal vMelville Snow Contrs., 98 NY2d 136 [2002]). These issues of fact also preclude summarydismissal of common-law contribution and indemnification claims against Temco (seePhillips v Young Men's Christian Assn., 215 AD2d 825, 827 [1995]).
Similarly, Citibank may recover from Temco under the indemnity provisions of their writtencontract to the extent, if any, it is determined to be without fault in causing plaintiff's injuries (see Prenderville v International Serv. Sys.,Inc., 10 AD3d 334, 338 [2004]; Pardo v Bialystoker Ctr. & Bikur Cholim, Inc., 10 AD3d 298, 301[2004]).
However, the motion court should have dismissed the claims against L.I.S.R. Based onplaintiffs' theory of the case that plaintiff slipped on ice that formed from water that dripped fromdefendant Citibank's roof and then froze, and the paucity of evidence as to any other source ofthe ice upon which plaintiff allegedly slipped, there is no view of the evidence that wouldsupport liability on the part of L.I.S.R. L.I.S.R. was hired to plow and salt the parking lot andsidewalks after one inch of snow fell or when requested. It is uncontroverted that all snow hadbeen removed on March 2nd, and documents show that L.I.S.R. performed further salting onMarch 3rd after Citibank requested it. Nowhere does plaintiff claim that inadequate snowremoval caused the ice to form.
Plaintiffs' expert's affidavit avers that L.I.S.R.'s principal, who had serviced the site, shouldhave known about what must have been a recurring condition, and either shoveled the roof ordisplayed warning cones. However, L.I.S.R. had no contractual or other duty to shovel the roofor provide cones, and there is no reason to believe that L.I.S.R., as a snow removalsubcontractor, either knew about a condition that occurred after it left the premises or had anyobligation to do anything about it. Although defendant Temco raises the possibility that based onthe presence of ice on March 6th L.I.S.R. either inadequately performed its function or somehowexacerbated a condition, for the trier of fact to reach such a conclusion would amount to rankspeculation.
Where, as here, a snow removal contract was not the type of comprehensive and exclusiveproperty maintenance obligation, as Temco had, that could provide a basis for liability, a snowremoval contractor owes no duty to a third party (Espinal, 98 NY2d at 140-141). HereTemco, under contract for general maintenance, and Citibank, as the tenant in possession, hadthe duty to maintain the premises in safe condition. In Espinal, the Court of Appealsfound that a [*3]snow removal contractor owed no duty of care toa person who slipped and fell on an icy parking lot that the contractor failed to properly clear ofsnow. Although the Espinal Court acknowledged that a contractor who created orexacerbated a dangerous condition might be liable, as in the case here, plaintiff has not offeredany support for the allegations that L.I.S.R.'s activities increased the hazardous condition of thelot. Merely plowing snow and salting, after one inch falls or on request, as required by acontract, is insufficient for a factual finding that the work either created or exacerbated adangerous condition and is also insufficient to impose a duty of care toward a third person (Fung v Japan Airlines Co., Ltd., 9NY3d 351, 360-361 [2007]).
The motion court properly denied Citibank's motion to preclude plaintiffs' experts'testimony. Those opinions that the ice on which plaintiff allegedly slipped was formed by alongstanding "thaw-refreeze" condition whereby snow and ice collect on the roof of the bankbuilding, then thaw and drip onto the ground and refreeze, do not present any insuperableconflict with plaintiffs' position of no defect in the roof design. The existence of thethaw-refreeze condition that plaintiffs' experts discuss is supported by evidence apart from theexperts' own affidavits, such as the testimony of L.I.S.R.'s principal. The water stains on theunderside of the sign merely supplement this evidence. The experts' testimony thus may besubmitted for the purpose of explaining to the jury the nature of the alleged thaw-refreezecondition and its longstanding existence (see e.g. Taylor v Bankers Trust Co., 80 AD2d483, 484-486 [1981]), and will also be helpful in explaining measures that could have been takento ameliorate the condition.
We have considered the parties' remaining contentions for affirmative relief and find themunavailing. Concur—Mazzarelli, J.P., Moskowitz, Renwick and Freedman, JJ.