| Mathey v Metropolitan Transp. Auth. |
| 2012 NY Slip Op 03418 [95 AD3d 842] |
| May 1, 2012 |
| Appellate Division, Second Department |
| Claire Mathey et al., Respondents, v MetropolitanTransportation Authority et al., Appellants-Respondents, Allright Corporation et al.,Respondents, and Samuel Cockburn & Sons, Inc.,Respondent-Appellant. |
—[*1] Miranda Sambursky Slone Sklarin Verveniotis, LLP, Elmsford, N.Y. (Michael D. Neri ofcounsel), for respondent-appellant. Carro Carro & Mitchell, LLP, New York, N.Y. (John S. Carro of counsel), forplaintiffs-respondents. Fixler & LaGattuta, LLP, New York, N.Y. (Jason L. Fixler of counsel), fordefendants-respondents.
In an action to recover damages for personal injuries, etc., the defendants MetropolitanTransportation Authority and Metro-North Commuter Railroad Company appeal from so muchof an order of the Supreme Court, Westchester County (Loehr, J.), entered January 14, 2011, asdenied those branches of their motion which were for summary judgment on their cross claimsfor common-law indemnification and contractual indemnification against the defendants AllrightCorporation, Central Parking System, Inc., and Samuel Cockburn & Sons, Inc., and the defendantSamuel Cockburn & Sons, Inc., cross-appeals, as limited by its brief, from so much of the sameorder as denied its cross motion for summary judgment dismissing the complaint and all crossclaims insofar as asserted against it, granted that branch of the separate cross motion of thedefendants Allright Corporation and Central Parking System, Inc., which was for summaryjudgment on the cross claim of those defendants against it for contractual indemnification, and,upon granting that branch of the motion of the defendants Metropolitan Transportation Authorityand Metro-North Commuter Railroad Company which was for leave to amend their answer toassert a cross claim against it alleging breach of contract for failure to procure insurance, grantedthat branch of the motion of those defendants which was for summary judgment on that crossclaim.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denyingthat branch of the cross motion of the defendant Samuel Cockburn & Sons, Inc., [*2]which was for summary judgment dismissing the complaint insofaras asserted against it and substituting therefor a provision granting that branch of its motion, (2)by deleting the provision thereof granting that branch of the separate cross motion of thedefendants Allright Corporation and Central Parking System, Inc., which was for summaryjudgment on their cross claim against the defendant Samuel Cockburn & Sons, Inc., forcontractual indemnification and substituting therefor a provision denying that branch of theirmotion, and (3) by deleting the provision thereof granting that branch of the motion of thedefendants Metropolitan Transportation Authority and Metro-North Commuter RailroadCompany which was for summary judgment on their cross claim against the defendant SamuelCockburn & Sons, Inc., alleging breach of contract for failure to procure insurance andsubstituting therefor a provision denying that branch of their motion; as so modified, the order isaffirmed insofar as appealed and cross-appealed from, with one bill of costs payable to SamuelCockburn & Sons, Inc., by the plaintiffs, the defendants Metropolitan Transportation Authorityand Metro-North Commuter Railroad Company, and the defendants Allright Corporation andCentral Parking System, Inc., appearing separately and filing separate briefs.
At approximately 8:30 a.m. on February 1, 2008, the injured plaintiff allegedly slipped andfell on ice in the parking lot of the Cortlandt Station of the Metro-North commuter railroad. Theplaintiff and her husband, suing derivatively (hereinafter together the plaintiffs), commenced thisaction against the defendants Metropolitan Transportation Authority and Metro-North CommuterRailroad Company (hereinafter together Metro-North), as well as against the defendants AllrightCorporation and Central Parking System, Inc. (hereinafter together Allright), which operated theparking lot pursuant to a contract with Metro-North, and the defendant Samuel Cockburn &Sons, Inc. (hereinafter SCS), which had contracted with Allright to perform snow and iceremoval at the parking lot. The evidence established that SCS cleared the parking lot of snow andplaced it into areas designated by Metro-North, and deposited salt on ice in the parking lot on themorning of the injured plaintiff's fall. SCS also transmitted daily written "snow reports" toAllright, which monitored the condition of the lot. Metro-North retained the exclusive authorityto direct that snow be removed from the snow storage areas.
Metro-North moved for summary judgment on its cross claims for contractualindemnification and common-law indemnification against Allright and SCS, for leave to amendits answer to assert cross claims against Allright and SCS alleging breach of contract for failureto procure commercial liability insurance, and for summary judgment thereon. SCS cross-movedfor summary judgment dismissing the complaint and all cross claims asserted against it on theground that it owed no duty to the injured plaintiff. Allright separately cross-moved for summaryjudgment dismissing the complaint insofar as asserted against it and for summary judgment on itscross claims against SCS for contractual indemnification and common-law indemnification.
A contractor may be held liable for injuries to a third party where, in undertaking to renderservices, the contractor entirely displaces the duty of the property owner to maintain the premisesin a safe condition, the injured party relies on the contractor's continued performance under theagreement, or the contractor negligently creates or exacerbates a dangerous condition (seeEspinal v Melville Snow Contrs., 98 NY2d 136, 141-142 [2002]; Foster v Herbert Slepoy Corp., 76AD3d 210 [2010]; Lehman v NorthGreenwich Landscaping, LLC, 65 AD3d 1291, 1292 [2009], affd 16 NY3d 747[2011]; Pavlovich v Wade Assoc., 274 AD2d 382 [2000]; Genen v Metro-NorthCommuter R.R., 261 AD2d 211 [1999]).
A party moving for summary judgment must demonstrate its prima facie entitlement tojudgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).Having performed the duties required of it under the contract, and submitted proof thatMetro-North had the exclusive right to direct the removal of excess snow from the snow storageareas, SCS demonstrated that the injured plaintiff was not a party to the snow and ice removalcontract, and it did not owe a duty to her, thereby demonstrating its prima facie entitlement tojudgment as a matter of law (see Espinal v Melville Snow Contrs., 98 NY2d at 141-142;Foster v Herbert Slepoy Corp., 76AD3d 210 [2010]; Lehman v North Greenwich Landscaping, LLC, 65 AD3d at1292). Although not required to do so in connection with its prima facie showing of entitlementto judgment a matter of law, SCS [*3]nonetheless demonstratedthat it neither created nor exacerbated the dangerous condition that allegedly caused the injuredplaintiff to sustain injuries and did not entirely displace the duty of the landowner to safelymaintain the premises (see Foster v Herbert Slepoy Corp., 76 AD3d at 214). Inopposition, the plaintiffs failed to raise a triable issue of fact as to whether SCS's allegednegligence created or exacerbated the hazard which was a proximate cause of the injuriesallegedly sustained so as to establish SCS's duty to the injured plaintiff, or to offer proof that SCShad displaced Metro-North's responsibility with respect to the safety of the parking lot (seeEspinal v Melville Snow Contrs., 98 NY2d at 141-142; Foster v Herbert Slepoy Corp., 76 AD3d 210 [2010]; Lehman vNorth Greenwich Landscaping, LLC, 65 AD3d at 1292). Accordingly, the Supreme Courtshould have granted that branch of SCS's motion which was for summary judgment dismissingthe complaint insofar as asserted against it.
Metro-North met its prima facie burden of demonstrating its entitlement to judgment as amatter of law on its cross claims for contractual indemnification against Allright and SCS. Inopposition, however, triable issues of fact were raised as to whether Metro-North was negligent.Therefore, the Supreme Court properly denied that branch of Metro-North's motion which wasfor summary judgment on its cross claims for contractual indemnification against Allright andSCS. The Supreme Court properly denied that branch of Metro-North's motion which was forsummary judgment on its cross claims for common-law indemnification, as Metro-North failedto establish its entitlement to judgment as a matter of law. The Supreme Court should havedenied that branch of Allright's cross motion which was for summary judgment on its cross claimfor contractual indemnification against SCS, as Allright failed to meet its prima facie burden,because there are triable issues of fact as to the negligence of Metro-North and Allright inconnection with their monitoring of the snow removal process and the designation of theplacement of the snow storage areas (see Foster v Herbert Slepoy Corp., 76 AD3d at 216;Watters v R.D. Branch Assoc., LP,30 AD3d 408 [2006]; Boskey v Gazza Props., 248 AD2d 344, 346 [1998]).
Finally, Metro-North failed to meet its prima facie burden in moving for summary judgmenton its cross claim against SCS alleging breach of contract for failure to procure insurance.Metro-North did not demonstrate that SCS failed to comply with the contractual provision topurchase commercial liability insurance naming Metro-North as an additional insured (see DiBuono v Abbey, LLC, 83 AD3d650 [2011]; Rodriguez v Savoy Boro Park Assoc. Ltd. Partnership, 304 AD2d 738,739 [2003]). Angiolillo, J.P., Lott, Roman and Miller, JJ., concur.