| Mesler v PODD LLC |
| 2011 NY Slip Op 08424 [89 AD3d 1533] |
| November 18, 2011 |
| Appellate Division, Fourth Department |
| Dana Mesler et al., Respondents-Appellants, v PODD LLC etal., Defendants, and JJK Management, Inc., et al., Appellants-Respondents. Developers DiversifiedRealty Corporation et al., Third-Party Plaintiffs, v JJK Management, Inc., Third-Party Defendant.(Appeal No. 1.) |
—[*1] Feldman Kieffer, LLP, Buffalo (Stephen M. Sorrels of counsel), fordefendants-appellants-respondents Weight Watchers International, Inc. and Weight Watchers NorthAmerica, Inc. Paul William Beltz, P.C., Buffalo (Debra A. Norton of counsel), forplaintiffs-respondents-appellants.
Appeals and cross appeal from an order of the Supreme Court, Erie County (Frank A. Sedita, Jr.,J.), entered May 26, 2010 in a personal injury action. The order, inter alia, denied the motion ofdefendants Weight Watchers International, Inc. and Weight Watchers North America, Inc. forsummary judgment and denied the cross motion of plaintiffs for partial summary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law by grantingthe motion of defendants Weight Watchers International, Inc. and Weight Watchers North America,Inc. for summary judgment and dismissing the amended complaint against them and as modified theorder is affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries allegedly [*2]sustained by Dana Mesler (plaintiff) when he slipped and fell on an icysidewalk in front of a Weight Watchers location in a shopping center owned by defendant-third-partyplaintiff BG BCF, LLC and managed by defendant-third-party plaintiff Developers Diversified RealtyCorporation (collectively, DDRC defendants). We first address appeal No. 2, wherein the DDRCdefendants moved for a conditional order of indemnification against defendant-third-party defendant,JJK Management, Inc. (JJK), and sought additional relief in the alternative. Also in appeal No. 2, JJKcross-moved for summary judgment dismissing the amended complaint in the main action against it. Weagree with JJK that the court erred in granting that part of the DDRC defendants' motion for aconditional order of indemnification and in denying JJK's cross motion. We note at the outset that JJK'snotice of appeal recites that it is from the order in appeal No. 2 insofar as it denied JJK's cross motion,but it does not reference the order insofar as it granted in part the motion of the DDRC defendants. Wenote, however, that the brief of the DDRC defendants on appeal addresses their motion despite theomission of a reference to it in JJK's notice of appeal. Thus, "there is no indication on this record that[the DDRC defendants are] prejudiced by that omission, [and] we exercise our discretion to reachbeyond the scope of [the] notice of . . . appeal and address the merits of [this] issue[ ]"(Camperlino v Town of Manlius Mun.Corp., 78 AD3d 1674, 1675 [2010], lv dismissed 17 NY3d 734 [2011] [internalquotation marks omitted]).
The Service/Materials Agreement (agreement), whereby defendant-third-party plaintiff DevelopersDiversified Realty Corporation, on behalf of defendant-third-party plaintiff BG BCF, LLC, contractedwith JJK for snow removal and salting services, requires that JJK indemnify the DDRC defendants forliabilities and costs that are "caused in whole or in part by the negligent or intentional act or omission" ofJJK employees. Thus, "the contract for snow removal services required [JJK] to indemnify [the DDRCdefendants] only in the event that [JJK] was negligent in the performance of the contract and, contraryto [the DDRC defendants'] contention, there are triable issues of fact with respect thereto" (Walterv United Parcel Serv., Inc., 56 AD3d 1187, 1188 [2008]). The DDRC defendants werealso required to establish that they were free from negligence (see generally GeneralObligations Law § 5-322.1; Bellefleurv Newark Beth Israel Med. Ctr., 66 AD3d 807, 808 [2009]), and they failed to establish as amatter of law that they did not "cause[or] allow[ ] a dangerous condition to exist," as alleged in theamended complaint. The conditional order of indemnification therefore is premature for that reason aswell (see Bellefleur, 66 AD3d at 808-809). Because the court did not reach the alternativeargument in the DDRC defendants' motion that they are entitled to damages based on JJK's failure toprocure liability insurance required by the agreement, we remit the matter to Supreme Court to decidethat part of the motion.
With respect to JJK's cross motion for summary judgment dismissing the amended complaint in themain action against it, we note the general rule that "a contractual obligation, standing alone, willgenerally not give rise to tort liability in favor of a third party" (Espinal v Melville Snow Contrs.,98 NY2d 136, 138 [2002]). An exception to that general rule as alleged in the amended complaint andplaintiffs' bills of particulars is "where the contracting party, in failing to exercise reasonable care in theperformance of [its] duties, 'launche[s] a force or instrument of harm' " (id. at 140; see Foster v Herbert Slepoy Corp., 76AD3d 210, 213-214 [2010]). Here, even assuming, arguendo, that JJK was negligent in failing tosalt the sidewalk, we conclude that such negligence would "amount[ ] to a finding that [JJK] may havemerely failed to become 'an instrument for good,' which is insufficient to impose a duty of care upon aparty not in privity of contract with the injured party" (Bauerlein v Salvation Army, 74 AD3d 851, 856 [2010]; see Churchv Callanan Indus., 99 NY2d 104, 111-112 [2002]).
In appeal No. 1, Weight Watchers International, Inc. and Weight Watchers North America, Inc.(collectively, Weight Watchers defendants) appeal and plaintiffs cross-appeal from [*3]an order denying the Weight Watchers defendants' motion for summaryjudgment dismissing the amended complaint against them and denying plaintiffs' cross motion for partialsummary judgment on the issue of notice of a hazardous condition or the affirmative creation of thatcondition. We agree with the Weight Watchers defendants that the court erred in denying their motion.Although a 1992 lease agreement imposed on the Weight Watchers defendants a duty "to cause thesidewalks adjacent to [the leased p]remises to be kept free of snow, ice, rubbish and merchandise,"that provision was modified in writing prior to plaintiff's fall by "deleting the words 'snow' and 'ice' "(cf. Figueroa v Tso, 251 AD2d 959 [1998]; see generally Gauthier v Super Hair, 306AD2d 850, 851 [2003]). We reject plaintiffs' contention that the occasional snow removal measurestaken by employees of the Weight Watchers defendants are sufficient to establish control over thesidewalk (see Figueroa, 251 AD2d 959). In light of our conclusions in appeals Nos. 1 and 2that the Weight Watchers defendants and JJK are entitled to summary judgment dismissing theamended complaint against them, we see no need to address the remaining contentions in appeal No. 1.
Finally, with respect to the cross appeal, we conclude that the court properly denied plaintiffs'cross motion for partial summary judgment. Contrary to plaintiffs' contention, the legal argument madeby counsel for the DDRC defendants, i.e., that "the [deposition] testimony supports the conclusion, as amatter of law, that the subject walkway was not salted on the day of the accident," is not a statement offact "made with sufficient formality [or] conclusiveness" to constitute a judicial admission (State ofNew York ex rel. H. v P., 90 AD2d 434, 439 n 4 [1982]; cf. Catanese v Lipschitz, 44AD2d 579 [1974]). Further, although the deposition testimony of a regional property manager fordefendant-third-party plaintiff Developers Diversified Realty Corporation supports the conclusion thatthe corporation was aware that precipitation would run off the curved roof of the shopping plaza andcollect in the grooves on the handicap ramp in the sidewalk where plaintiff fell, plaintiffs failed toestablish as a matter of law that the ice on which plaintiff fell was in fact caused by that runoff (see generally Carpenter v J. Giardino, LLC,81 AD3d 1231, 1233-1234 [2011], lv denied 17 NY3d 710 [2011]).Present—Centra, J.P., Fahey, Peradotto, Green and Gorski, JJ.