| Richards v Passarelli |
| 2010 NY Slip Op 07736 [77 AD3d 905] |
| October 26, 2010 |
| Appellate Division, Second Department |
| Margaret Richards, Respondent, v Guido Passarelli et al.,Appellants-Respondents, Pier 1 Imports et al., Respondents, and EIP Leasing Services, Inc.,Appellant. |
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In an action to recover damages for personal injuries, the defendants Guido Passarelli, LucyPassarelli and Passarelli Family Partnership, L.P., a New York Limited Partnership, appeal, aslimited by their brief, from so much of an order of the Supreme Court, Richmond County(McMahon, J.), dated July 8, 2009, as denied their motion for summary judgment dismissing thecomplaint insofar as asserted against them, the defendant Calvanico Associates, Inc.,cross-appeals, as limited by its brief, from so much of the same order as denied its cross motionfor summary judgment dismissing the complaint insofar as asserted against it and the cross claimasserted against it by Guido Passarelli, Lucy Passarelli, and Passarelli Family Partnership, L.P., aNew York Limited Partnership, alleging that it failed to procure insurance, and the defendant,EIP Leasing Services, Inc., separately cross-appeals, as limited by its brief, from so much of thesame order as denied its separate cross motion for summary judgment dismissing the complaintand all cross claims insofar as asserted against it.
Ordered that the order is modified, on the law, (1) by deleting the provisions thereof denyingthose branches of the cross motion of the defendant Calvanico Associates, Inc., which were forsummary judgment dismissing the complaint insofar as asserted against it and the cross claimasserted against it by Guido Passarelli, Lucy Passarelli, and Passarelli Family Partnership, L.P., aNew York Limited Partnership, alleging that it failed to procure insurance, and substitutingtherefor provisions granting those [*2]branches of the crossmotion, and (2) by deleting the provision thereof denying that branch of the separate crossmotion of the defendant EIP Leasing Services, Inc., which was for summary judgment dismissingall cross claims for contractual and common-law indemnification insofar as asserted against it,and substituting therefor a provision granting that branch of the cross motion; as so modified, theorder is affirmed insofar as appealed and cross-appealed from, with one bill of costs to CalvanicoAssociates, Inc., payable by the plaintiff and the defendants Guido Passarelli, Lucy Passarelli,and Passarelli Family Partnership, L.P., a New York Limited Partnership appearing separatelyand filing separate briefs, and one bill of costs to EIP Leasing Services, Inc., payable by thedefendants Guido Passarelli, Lucy Passarelli, and Passarelli Family Partnership, L.P., a NewYork Limited Partnership, the defendant Pier 1 Imports, the defendant Arrow Line Striping Co.,and the defendant Calvanico Associates, Inc.
The plaintiff was allegedly injured when she drove her vehicle off a curb and onto a sidewalkwhen attempting to exit the parking lot of a Pier 1 Imports store. The plaintiff testified at herdeposition that she followed an arrow painted on the paved surface of the parking lot, which shebelieved was pointing toward an exit. She drove her vehicle over the curb wall onto the sidewalkbelow, a distance of approximately six inches. She testified that the edge of the parking lot wasflush with the curb, and she could not see a ledge. There was no "curb reveal" or other painting,lighting, or signage indicating the presence of a curb. The plaintiff testified that there were nowarning signs or markings to alert drivers to the height differential. The parking lot was ownedby Guido Passarelli, Lucy Passarelli, and Passarelli Family Partnership, L.P., a New YorkLimited Partnership (hereinafter collectively the Passarelli defendants). The lot was designed in1995 by Calvanico Associates, Inc. (hereinafter Calvanico). EIP Leasing Services, Inc.(hereinafter EIP), paved the lot in 1995, and then repaved it in 2003, adding approximately twoinches of asphalt to the surface of the parking lot. Arrow Line Striping Co. (hereinafter Arrow)painted the lines, stripes, and arrows in the parking lot in 1995, and repainted the lot in 2003.
The Supreme Court did not err in denying the motion of the Passarelli defendants forsummary judgment dismissing the complaint insofar as asserted against them. The Passarellidefendants, as landowners, failed to make a prima facie showing that the alleged condition wasopen and obvious and not inherently dangerous (see Matthews v Vlad Restoration Ltd., 74 AD3d 692 [2010]; Atanasoff v Elmont Union Free SchoolDist., 18 AD3d 678 [2005]), or that if there were a dangerous condition, it neithercreated that condition nor had actual or constructive notice of its existence for a sufficient lengthof time to discover and remedy it (seeVan Dina v St. Francis Hosp., Roslyn, N.Y., 45 AD3d 673 [2007]; Miguel v SJS Assoc., LLC, 40 AD3d942 [2007]).
The Supreme Court also did not err in denying the motion of EIP Leasing Services, Inc.(hereinafter EIP), for summary judgment dismissing the complaint insofar as asserted against it.EIP failed to establish its prima facie entitlement to judgment as a matter of law, as itssubmissions revealed issues of fact as to whether EIP, by adding a layer of asphalt to the floor ofthe parking lot while failing to mill the entire lot, created or exacerbated a dangerous condition,thereby launching a force or instrument of harm (see Foster v Herbert Slepoy Corp., 76 AD3d 210 [2010]; Miller v Pike Co., Inc., 52 AD3d1240 [2008]; Keese v ImperialGardens Assoc., LLC, 36 AD3d 666 [2007]).
EIP's contention that the plaintiff was required to establish that she sustained a serious injuryis without merit, as the plaintiff did not allege any negligence on the part of the defendants in theuse or operation of a motor vehicle. Instead, the allegations against the defendants related topremises liability. Accordingly, none of the defendants was a "covered person" within themeaning of Insurance Law § 5102 (j) and § 5104 (a), and the "serious injury"threshold articulated in Insurance Law § 5102 (d) was, thus, inapplicable (see Bright v Village of Great NeckEstates, 54 AD3d 704, 705 [2008]).
However, EIP correctly contends that all cross claims asserted against it for bothcommon-law and contractual indemnification should have been dismissed. There is no evidencethat EIP had a contract with the Passarelli defendants, Pier 1 Imports, Calvanico, or Arrow thatrequired EIP to indemnify any of them (see Foster v Herbert Slepoy Corp., 76 AD3d 210 [2010]; Corley v Country Squire Apts., Inc., 32AD3d 978 [2006]; Keshavarz v Murphy, 242 AD2d 680 [1997]). Furthermore, theliability of EIP's codefendants, if any, would be based on their actual wrongdoing, not on theirvicarious liability for EIP's allegedly negligent conduct (see Corley v Country Squire Apts., Inc., 32 AD3d 978 [2006];Keshavarz v Murphy, 242 AD2d 680 [1997]), thus defeating all claims for common-lawindemnification. Accordingly, the Supreme Court [*3]shouldhave granted that branch of EIP's cross motion which was for summary judgment dismissing allcross claims for contractual and common-law indemnification insofar as asserted against it.
The Supreme Court also erred in denying that branch of Calvanico's cross motion which wasfor summary judgment dismissing the complaint insofar as asserted against it. Calvanicoestablished its prima facie entitlement to judgment as a matter of law by demonstrating that itwas not negligent in the design of the subject parking lot. Calvanico's site plan provided for asix-inch "curb reveal" and detectable warning surfaces between the parking lot and the sidewalk.Calvanico's plan also included arrows showing the general direction of traffic flow. Calvanicoestablished that it used the degree of care in design that a reasonably prudent architect would useto avoid an unreasonable risk of harm to anyone likely to be exposed to the danger (seeCubito v Kreisberg, 69 AD2d 738 [1979], affd 51 NY2d 900 [1980]; Morris vAttia, 7 Misc 3d 1001[A], 2005 NY Slip Op 50397[U] [2005]; Hughes v City of NewYork, 5 Misc 3d 1024[A], 2002 NY Slip Op 50724[U] [2002]).
To the extent that the "curb reveal" was eliminated during the repaving of the parking lot in2003, that there were no warning markings to indicate to a driver that they were about to driveoff the curb onto the sidewalk, and that the arrows were improperly placed, the lot was notconstructed in accordance with Calvanico's plans. Therefore, any alleged negligent design byCalvanico was not a proximate cause of the plaintiff's accident (see Carpenter v Murphy, 4 AD3d318 [2004]; Merritt v Hooshang Constr., 216 AD2d 542 [1995]). Since there are notriable issues of fact as to whether Calvanico was negligent, the Supreme Court should havegranted that branch of Calvanico's cross motion which was for summary judgment dismissing thecomplaint insofar as asserted against it.
We note that the plaintiff did not oppose Calvanico's cross motion in the Supreme Court, andthat the Passarelli defendants did not raise any arguments in opposition to Calvanico's crossappeal.
Furthermore, the Supreme Court erred in denying that branch of Calvanico's cross motionwhich was for summary judgment dismissing the Passarelli defendants' cross claim against italleging that it failed to procure insurance. The contract between Calvanico and the Passarellidefendants did not require Calvanico to procure insurance naming the Passarelli defendants asadditional insureds (see Aragundi vTishman Realty & Constr. Co., Inc., 68 AD3d 1027 [2009]; Bryde v CVS Pharmacy, 61 AD3d907 [2009]). Mastro, J.P., Dickerson, Eng and Lott, JJ., concur.