| Kearsey v Vestal Park, LLC |
| 2010 NY Slip Op 02465 [71 AD3d 1363] |
| March 25, 2010 |
| Appellate Division, Third Department |
| Margaret Kearsey, Respondent, v Vestal Park, LLC, et al.,Appellants, and Anthony Joseph Pittarelli II, Individually and Doing Business as GreenskeeperLawn Maintenance Service, et al., Respondents. |
—[*1] Finkelstein & Partners, L.L.P., Newburgh (James W. Shuttleworth III of counsel), forMargaret Kearsey, respondent. Knych & Whritenour, L.L.C., Syracuse (Brendan J. Reagan of counsel), for Anthony JosephPittarelli II and another, respondents.
Peters, J.P. Appeal from an order of the Supreme Court (Tait, J.), entered October 27, 2008in [*2]Broome County, which, among other things, denied amotion by defendants Vestal Park, LLC and Northeast United Corporation for summaryjudgment dismissing the complaint against them.
Plaintiff sued to recover for injuries she sustained when she slipped and fell on a patch of iceon the sidewalk of a shopping plaza owned by defendants Vestal Park, LLC and NortheastUnited Corporation (hereinafter collectively referred to as defendants). In their answers,defendants interposed cross claims for contribution and indemnification against defendantsGreenskeeper Lawn Maintenance Service and Anthony Joseph Pittarelli II, individually anddoing business as Greenskeeper Lawn Maintenance Service (hereinafter collectively referred toas Greenskeeper), the contractor hired to perform snow and ice removal of the sidewalks at theplaza. Following joinder of issue and discovery, defendants and Greenskeeper separately movedfor summary judgment dismissing the complaint, with Greenskeeper also moving to dismissdefendants' cross claims.[FN*]Supreme Court denied defendants' motion, finding questions of fact as to whether they hadconstructive notice of the icy condition, and granted Greenskeeper's summary judgment motiondismissing the cross claims. Defendants now appeal.
To demonstrate entitlement to summary judgment dismissing plaintiff's complaint, it wasincumbent upon defendants "to establish as a matter of law that they maintained the property inquestion in a reasonably safe condition and that they neither created the allegedly dangerouscondition existing thereon nor had actual or constructive notice thereof" (Brown v Haylor, Freyer & Coon, Inc.,60 AD3d 1188, 1189 [2009] [internal quotation marks and citations omitted]; see Managault v Rensselaer PolytechnicInst., 62 AD3d 1196, 1197 [2009]; Moriarity v Wallace Dev. Co., LLC, 61 AD3d 1088, 1088 [2009]).Here, defendants met their initial burden by proffering, among other things, evidence of thecontractual arrangements with Greenskeeper to maintain the plaza's sidewalks free of snow andice, plaintiff's testimony that she had not observed any snow or ice on the sidewalk before shefell, and the testimony of defendants' representatives and staff establishing that they did notreceive any complaints from store tenants concerning an icy condition, nor did the weatherindicate the need to ensure that maintenance contractors were on site to salt (see Elsey v Clark Trading Corp., 57AD3d 1330, 1331 [2008]; Torosianv Bigsbee Vil. Homeowners Assn., 46 AD3d 1314, 1315 [2007]; Dickerson v Troy Hous. Auth., 34AD3d 1003, 1004 [2006]). As such, the burden shifted to plaintiff to come forward withevidence demonstrating a triable issue of fact (see CPLR 3212 [b]; Zuckerman v Cityof New York, 49 NY2d 557, 562 [1980]).
In opposition, plaintiff asserted that the slippery condition was created by the melting ofsnow on the roof, which resulted in water falling from the overhang onto the sidewalk and thenfreezing to form ice, and submitted proof primarily aimed at raising a factual issue concerningconstructive notice. "A claim of constructive notice requires that the condition be visible andapparent and in existence for a sufficient period of time so as to allow the defendant an [*3]opportunity to take corrective action" (Saunders v Bryant's Towing, 27 AD3d992, 994 [2006] [citation omitted]; see Brown v Haylor, Freyer & Coon, Inc., 60AD3d at 1189-1190; Cantwell vRondout Sav. Bank, 55 AD3d 1031, 1032 [2008]).
Plaintiff's deposition testimony established that, immediately after her fall, she observed thepatch of ice she had slipped on. She described it as "quite extensive," being at least a foot inwidth and extending at least three store lengths. She also proffered the affidavits of AnthonyMeier, Heather Beers and Courtney Simpson, each of whom observed plaintiff's fall, averred thatanother patron fell approximately an hour earlier in that exact same location and described thecondition of the portion of the sidewalk where plaintiff fell as "covered" in ice. According toMeier and Beers, both of whom worked at a store within the plaza, ice often formed in the areawhere plaintiff fell as a result of water dripping from the roof and overhang. Meier added that heobserved icicles a few feet long hanging off the overhang and dripping onto the sidewalk at thetime of plaintiff's fall, and Beers confirmed the presence of ice in the area of plaintiff's fall bothprior to and following the accident. Plaintiff further offered the affidavit from an expert whostated that the climatological data revealed a widespread storm that brought more than 13 inchesof snow that ended during the late morning on the day prior to the accident, and opined that thesubsequent sunny weather, coupled with temperatures that fluctuated just above freezing, causedsnow to melt and run off from the overhang onto the sidewalk and created the potential forrefreezing. An affidavit from an engineer, who visited the scene well after the accident but foundits condition to be unchanged, concluded that the size and placement of the overhang was adirect cause of the water dripping onto the location of the sidewalk where plaintiff fell and thesubsequent icy condition that existed at the time of the accident. Viewing this evidence in a lightmost favorable to plaintiff and according her every favorable inference (see Brown v Haylor,Freyer & Coon, Inc., 60 AD3d at 1190), we agree with Supreme Court's conclusion that sheraised a triable issue of fact "as to whether the allegedly dangerous condition existed for asufficient period of time prior to the accident for defendant[s] to reasonably have discovered andremedied it" (Dickerson v Troy Hous. Auth., 34 AD3d at 1004-1005; see Moriarity vWallace Dev. Co., 61 AD3d at 1089; Torosian v Bigsbee Vil. Homeowners Assn.,46 AD3d at 1315).
Nor are we persuaded that Supreme Court erred in dismissing defendants' cross claims forcontribution and indemnification. To sustain a claim for contribution, defendants were requiredto show that Greenskeeper owed them a duty of reasonable care independent of its contractualobligations or that Greenskeeper owed a duty directly to plaintiff and that a breach of that dutycontributed to her injuries (see Phillips v Young Men's Christian Assn., 215 AD2d 825,827 [1995]). Here, Greenskeeper's maintenance agreement with Vestal Park preserved the latter'sright to contract with other third parties for snow and ice removal of the plaza's sidewalks andonly required Greenskeeper to plow if the snow accumulation exceeded two inches or upondefendants' request. As the contract was not " 'so comprehensive and exclusive a maintenanceagreement as to entirely displace the landowner's duty' " to maintain the property safely,Greenskeeper did not owe an independent duty to plaintiff (Malcolm v Kapur, 278 AD2d926, 927 [2000], quoting Salisbury v Wal-Mart Stores, 255 AD2d 95, 96 [1999]; seeBorden v Wilmorite, Inc., 271 AD2d 864, 865 [2000], lv denied 95 NY2d 767[2000]; Phillips v Young [*4]Men's Christian Assn., 215AD2d at 827). Furthermore, Greenskeeper established that it did not owe defendants a duty ofcare independent of its contractual obligations, and defendants failed to raise an issue of factregarding such a duty (see Malcolm v Kapur, 278 AD2d at 926; Phillips v YoungMen's Christian Assn., 215 AD2d at 827). Accordingly, Supreme Court properly dismisseddefendants' cross claims for contribution.
We reach a similar conclusion with respect to defendants' cross claims for indemnification.Here, Greenskeeper made a prima facie showing of entitlement to summary judgment dismissingthe contractual indemnification claims by demonstrating that it fulfilled its duties under thecontract (see Peycke v Newport MediaAcquisition II, Inc., 17 AD3d 338, 339 [2005]; Baratta v Home Depot USA,303 AD2d 434, 435 [2003]). The contract obligated Greenskeeper to plow the sidewalks if twoinches of snow or more fell, and required salting if less than two inches of snow hadaccumulated or upon receiving "freezing rain and/or sleet or standing water freezing." It furtherrequired Greenskeeper to perform snow removal and salting when requested by Vestal Park. Tothat end, it is uncontroverted that, on the day prior to plaintiff's fall, Greenskeeper performedsnow removal and salting at 8:00 a.m., and resalting at 10:00 a.m. Greenskeeper also submittedmeteorological evidence demonstrating that no precipitation had fallen between the time it lastsalted the sidewalks and plaintiff's fall, and that it was sunny with temperatures rising abovefreezing throughout the morning of the accident.
In response, defendants failed to raise an issue of fact. Plaintiff's theory of the case is that sheslipped on ice that formed from water that dripped from defendants' roof and then froze, and noevidence has been submitted as to any other source of the ice upon which plaintiff allegedlyslipped. Although defendants argue that Greenskeeper would be responsible for salting undersuch circumstances because this would constitute "freezing water standing," there is not ascintilla of proof that Greenskeeper either knew about a condition that occurred after it left thepremises or had any obligation to constantly monitor the property for such a condition (see Tamhane v Citibank, N.A., 61AD3d 571, 573-574 [2009]). As such, Supreme Court properly dismissed defendants' crossclaims for contractual indemnification. Dismissal of the common-law indemnification claimswas also proper since defendants failed to raise a triable issue of fact as to whether plaintiff'saccident was attributable solely to the negligent performance or nonperformance of an act thatwas solely within Greenskeeper's province, such that defendants' liability to plaintiff, if any,would be strictly vicarious (see Corleyv Country Squire Apts., Inc., 32 AD3d 978, 979 [2006]; Murphy v M.B. Real EstateDev. Corp., 280 AD2d 457, 457-458 [2001]; Keshavarz v Murphy, 242 AD2d 680,681 [1997]; see also Westbank Contr.,Inc. v Rondout Val. Cent. School Dist., 46 AD3d 1187, 1189 [2007]).
Spain, Lahtinen, Stein and Garry, JJ., concur. Ordered that the order is affirmed, with onebill of costs.
Footnote *: Plaintiff subsequentlydiscontinued her claims against Greenskeeper.