| Reimold v Walden Terrace, Inc. |
| 2011 NY Slip Op 05685 [85 AD3d 1144] |
| June 28, 2011 |
| Appellate Division, Second Department |
| Felicity Reimold, Plaintiff, v Walden Terrace, Inc., et al.,Defendants/Third-Party Plaintiffs-Respondents, and Coinmach Corporation,Defendant/Third-Party Defendant-Appellant, et al., Defendant. |
—[*1] Thomas D. Hughes, New York, N.Y. (Richard C. Rubinstein and David D. Hess of counsel),for defendants/third-party plaintiffs-respondents.
In an action to recover damages for personal injuries, Coinmach Corporation appeals from anorder of the Supreme Court, Queens County (Butler, J.), entered January 25, 2010, which deniedits motion for summary judgment dismissing the complaint, the third party complaint, and allcross claims insofar as asserted against it.
Ordered that the order is modified, on the law, by deleting the provision thereof denyingthose branches of the appellant's motion which were for summary judgment dismissing the crossclaims and third-party causes of action for contractual and common-law indemnification, andsubstituting therefor a provision granting those branches of the motion; as so modified, the orderis affirmed, without costs or disbursements.
The plaintiff allegedly was injured when she slipped and fell on water emanating from aflooded laundry room in an apartment complex owned and managed by thedefendants/third-party plaintiffs Walden Terrace, Inc., and ARAS Properties, Inc. (hereinaftertogether Walden Terrace). Walden Terrace had leased the laundry rooms in the complex to thedefendant Coinmach Corporation, also incorrectly sued and impleaded herein as CoinmachIndustries Co. (hereinafter Coinmach). The lease, among other things, provided for Coinmach'sexclusive use and occupancy of the laundry rooms for a fixed period of time, in return formonthly rent payments. Pursuant to the terms of the lease, Coinmach was required to inspect thelaundry rooms once per week in accordance with a checklist, while Walden Terrace wasresponsible for maintaining the rooms in a clean condition. Coinmach moved for summaryjudgment dismissing the complaint, as well as all cross claims and the third-party complaintinsofar as asserted against it, in which Walden Terrace asserted claims for contribution,contractual indemnification, and common-law indemnification. The Supreme Court denied themotion. We modify.
The Supreme Court properly denied that branch of Coinmach's motion which was [*2]for summary judgment dismissing the complaint insofar as assertedagainst it. Contrary to Coinmach's contention, it failed to establish, prima facie, that it did notowe a duty to the plaintiff. A tenant has a common-law duty to keep the premises it occupies in areasonably safe condition, even when the landlord has explicitly agreed in the lease to maintainthe premises (see Cohen v Central Parking Sys., 303 AD2d 353, 354 [2003]; Chadis vGrand Union Co., 158 AD2d 443 [1990]; see also Zuckerman v State of New York,209 AD2d 510, 512 [1994]). Coinmach's contention that it merely maintained the laundryequipment and was not in possession of the premises is unsubstantiated and contrary to theprovisions of the lease (see Cohen v Central Parking Sys., 303 AD2d at 354; see alsoZuckerman v State of New York, 209 AD2d at 511-512; cf. Coinmach Corp. v HartonAssoc., 304 AD2d 705, 706 [2003]).
Moreover, Coinmach failed to make a prima facie showing that it did not create the allegeddangerous condition. "A defendant who moves for summary judgment in a slip-and-fall case hasthe initial burden of making a prima facie showing that it neither created the hazardous conditionnor had actual or constructive notice of its existence for a sufficient length of time to discoverand remedy it" (Melnikov v 249Brighton Corp., 72 AD3d 760, 760 [2010]; Frazier v City of New York, 47 AD3d 757, 758 [2008]). Here, thedeposition testimony of Walden Terrace's maintenance worker, submitted by Coinmach insupport of its motion, established that the flooding was caused by a clog consisting of hair orsimilar material in the pipe that drained the water from Coinmach's washing machines. Further,while the checklist for Coinmach's weekly inspections required its technicians to check thewashing machines' lint filters, Coinmach's regional vice president testified at his deposition thatthe machines were not equipped with lint filters. Accordingly, Coinmach failed to eliminate alltriable issues of fact as to whether it created the dangerous condition by negligently maintainingits machines (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Since Coinmach did not establish its prima facie entitlement to judgment as a matter of law,the Supreme Court properly denied that branch of Coinmach's motion which was for summaryjudgment dismissing the complaint insofar as asserted against it, regardless of the sufficiency ofthe opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852[1985]).
However, the Supreme Court erred in denying those branches of Coinmach's motion whichwere for summary judgment dismissing Walden Terrace's cross claims and third-party causes ofaction for contractual and common-law indemnification. With respect to contractualindemnification, Coinmach established its prima facie entitlement to judgment as a matter of lawby demonstrating that it did not have a contractual obligation to indemnify Walden Terrace (see Corley v Country Squire Apts.,Inc., 32 AD3d 978, 978 [2006]). Walden Terrace did not oppose that branch ofCoinmach's motion which was for summary judgment dismissing the cross claim and thethird-party cause of action for contractual indemnification and, thus, failed to raise a triable issueof fact (see Corley v County Squire Apts., Inc., 32 AD3d at 978; Fairhaven Apts. No. 4, Inc. v Town of N.Hempstead, 8 AD3d 425, 426 [2004]). In addition, Coinmach established its entitlementto judgment as a matter of law dismissing Walden Terrace's cross claim and third-party cause ofaction for common-law indemnification by showing that Walden Terrace's liability, if any,"would be based on its actual wrongdoing in failing to properly maintain its property, and not onits vicarious liability for [Coinmach]'s conduct" (Corley v County Squire Apts., Inc., 32AD3d at 979; see Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 568-569[1987]; Consolidated Rail Corp. v Hunts Point Term. Produce Coop. Assn., Inc., 11AD3d 341, 342 [2004]). In opposition, Walden Terrace failed to raise a triable issue of fact.
Coinmach's remaining contention is without merit. Skelos, J.P., Leventhal, Austin and Sgroi,JJ., concur.