| Perales v First Columbia 1200 NSR, LLC |
| 2011 NY Slip Op 07552 [88 AD3d 1213] |
| October 27, 2011 |
| Appellate Division, Third Department |
| Bonnie Perales, Plaintiff, v First Columbia 1200 NSR, LLC,Appellant, and Gallivan Corporation, Respondent. |
—[*1] Stockton, Barker & Mead, L.L.P., Albany (Robert S. Stockton of counsel), forrespondent.
Peters, J.P. Appeal from an order of the Supreme Court (O'Connor, J.), entered November 1,2010 in Albany County, which granted a motion by defendant Gallivan Corporation for summaryjudgment dismissing, among other things, the cross claims against it.
After leaving work at approximately 5:30 p.m. on January 16, 2007, plaintiff slipped and fellon ice in the parking lot of premises owned by defendant First Columbia 1200 NSR, LLC. In thispersonal injury action against both First Columbia and defendant Gallivan Corporation, whichsupplied snow and ice removal services to First Columbia pursuant to a written agreement,plaintiff claims that they negligently maintained the property. In its answer, First Columbiainterposed cross claims against Gallivan for contribution and indemnification. Following joinderof issue and the completion of discovery, Gallivan moved for summary judgment dismissing thecomplaint against it and First Columbia's cross claims. Supreme Court [*2]granted the motion in its entirety, prompting this appeal by FirstColumbia.[FN*]
Supreme Court properly dismissed First Columbia's claim for contractual indemnification.The parties' contract required that Gallivan indemnify First Columbia for "all liability and loss. . . caused by or sustained in connection with the performance of this ServiceAgreement or by conditions created thereby." Here, Gallivan made a prima facie showing ofentitlement to summary judgment dismissing the contractual indemnification claim bydemonstrating that it fulfilled its duties under the contract (see Kearsey v Vestal Park, LLC, 71 AD3d 1363, 1366 [2010]) andthat plaintiff's accident was not "caused by or sustained in connection with the performance of[the contract] or by conditions created thereby," such that the indemnification provision was nottriggered (see Kogan v North St.Community, LLC, 81 AD3d 429, 430 [2011]; see generally Brown v Two Exch.Plaza Partners, 76 NY2d 172, 178 [1990]; O'Connor v Serge El. Co., 58 NY2d 655,657 [1982]).
The contract obligated Gallivan to plow all parking lots and walkways after the accumulationof one inch of snow, and required salting and sanding "when conditions dictate." It also providedthat snow, when cleared, would be piled in locations designated by First Columbia. It isundisputed that there was an ice storm on the day prior to plaintiff's accident and that Gallivancleared the property of ice and performed salting several times on that date. Gallivan's servicelogs reveal that its employees returned to the property the following morning at 5:00 a.m. andapplied salt. Upon an inspection of the property at approximately 7:00 a.m., an employee ofGallivan found the parking lot and walkways to be free of snow and ice. Gallivan also profferedplaintiff's deposition testimony that she observed no ice or snow in the parking lot or walkwayswhen she arrived at work, as well as meteorological evidence demonstrating that no precipitationhad fallen on the day of the accident. Furthermore, the two employees of Gallivan who inspectedthe property on the morning of the accident averred that when they plowed snow they always didso in the areas specified by First Columbia in the contract, that they never encountered a snowmelt/refreeze issue at the subject parking lot and that there was no snow or ice accumulationpresent at the property on the morning of the accident.
In opposition, First Columbia failed to raise an issue of fact. Plaintiff's theory of the case isthat she slipped on ice that formed from water that had melted from a pile of snow that wasplaced by Gallivan, and then subsequently froze. However, the record is devoid of any competentproof that Gallivan piled any snow in an area proximate to the location of plaintiff's fall. Notably,the evidence established that plowing and salting was also performed by First Columbia'sproperty technician. Nor did First Columbia offer any evidence addressing the origin of the iceon which plaintiff fell (see Castro vMaple Run Condominium Assn., 41 AD3d 412, 414 [2007]; Reagan v Hartsdale Tenants Corp., 27AD3d 716, 718 [2006]). As such, any [*3]argument thatGallivan created the condition that caused plaintiff's fall is based upon speculation. AlthoughFirst Columbia also argues that Gallivan should have inspected the parking lot in the afternoon orearly evening of the date of the accident, there is no proof that Gallivan "either knew about acondition that occurred after it left the premises or had any obligation to constantly monitor theproperty for such a condition" (Kearsey v Vestal Park, LLC, 71 AD3d at 1367; see Tamhane v Citibank, N.A., 61AD3d 571, 573-574 [2009]). Accordingly, First Columbia's cross claim for contractualindemnification was properly dismissed.
We reach a similar conclusion with respect to First Columbia's cross claim for common-lawindemnification. "One is entitled to implied indemnification where he or she has committed nowrong but is held vicariously liable for the wrongdoing of another" (Kozerski v Deer RunHomeowners Assn., 217 AD2d 841, 843 [1995] [citation omitted]; see Kearsey v VestalPark, LLC, 71 AD3d at 1367; Westbank Contr., Inc. v Rondout Val. Cent. School Dist., 46 AD3d1187, 1189 [2007]). Here, plaintiff's allegations charged First Columbia with liability innegligence for failing to properly configure the parking lot and pedestrian pathways, andvicarious liability for Gallivan's alleged negligent placement of snow piles. However, aspreviously noted, the contract required Gallivan to place plowed snow at the specified locationsdesignated by First Columbia, and there is no evidence that Gallivan failed to follow thoseinstructions. Where, as here, a contract's specifications are not so patently defective so as to put acontractor of ordinary prudence on notice that the work is dangerous and likely to cause injury,reliance on such contractual specifications is justified (see Hartofil v McCourt & Trudden Funeral Home, Inc., 57 AD3d943, 945 [2008]; West v City of Troy, 231 AD2d 825, 826 [1996]; Morriseau vRifenburg Constr., 223 AD2d 981, 982 [1996]; Pioli v Town of Kirkwood, 117AD2d 954, 955 [1986], lv denied 68 NY2d 601 [1986]). Thus, since any liability onbehalf of First Columbia for placement of the snow piles would involve its own active fault, aviable claim for common-law indemnification against Gallivan cannot lie (see Atkinson vSafety Kleen Corp., 240 AD2d 1003, 1005 [1997]).
Rose, Lahtinen, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote *: Although the notice of appealstates that First Columbia challenges "each and every part" of Supreme Court's order, its briefaddresses only the dismissal of its cross claims for contractual and common-law indemnification.Accordingly, First Columbia has abandoned any argument that the court improperly dismissed itscross claim for contribution and plaintiff's complaint against Gallivan (see Ostuni v Town of Inlet, 64 AD3d854, 855 n [2009]).