| Sawicki v GameStop Corp. |
| 2013 NY Slip Op 03657 [106 AD3d 979] |
| May 22, 2013 |
| Appellate Division, Second Department |
| Barbara Sawicki, Respondent, v GameStop Corp.et al., Respondents, and Westfield Management, Inc., et al., Appellants, et al.,Defendant. |
—[*1] Bergman, Bergman Goldberg & Lamonsoff, LLP, Mineola, N.Y. (Allen Goldberg ofcounsel), for plaintiff-respondent. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, N.Y. (CaryMaynard and Debra A. Adler of counsel), for defendants-respondents.
In an action to recover damages for personal injuries, the defendants WestfieldManagement, Inc., Westfield Corporation, Inc., Westfield Shopping Center Management,Westfield LLC, Westfield Sunrise Mall, Westfield Group, Westfield Holdings Limited,Westfield Management Limited, Westfield America Management Limited, and SunriseMall, LLC, appeal from an order of the Supreme Court, Nassau County (Phelan, J.),dated September 7, 2011, which denied their motion for summary judgment dismissingthe complaint insofar as asserted against them and on their cross claims for defense andindemnification against the defendants GameStop Corp., GameStop, Inc., GameStop ofNew York, GameStop, GameStop Corp., doing business as GameStop, GameStop, Inc.,doing business as GameStop, and GameStop of New York, doing business as GameStop.
Ordered that the order is affirmed, with one bill of costs payable to the respondentsappearing separately and filing separate briefs.
In this action to recover damages for personal injuries, stemming from an allegedslip-and-fall accident at the GameStop store in the Sunrise Mall in Massapequa, thedefendants Westfield Management, Inc., Westfield Corporation, Inc., WestfieldShopping Center Management, Westfield LLC, Westfield Sunrise Mall, WestfieldGroup, Westfield Holdings Limited, Westfield Management Limited, Westfield AmericaManagement Limited, and Sunrise Mall, LLC (hereinafter collectively the Sunrise Malldefendants), moved for summary judgment dismissing the complaint insofar as againstthem and on their cross claims for defense and indemnification from the defendantsGameStop Corp., GameStop, Inc., GameStop of New York, GameStop, GameStopCorp., doing business as GameStop, Gamestop, Inc., doing business as GameStop, andGameStop of New York, doing business as GameStop (hereinafter collectively theGameStop defendants). The Supreme Court denied the motion.[*2]
A defendant who moves for summary judgmentin a slip-and-fall case has the initial burden of establishing, prima facie, that it neithercreated the dangerous condition that allegedly caused the underlying accident nor hadactual or constructive notice of its existence for a sufficient length of time to discoverand remedy it (see Johnson vCulinary Inst. of Am., 95 AD3d 1077, 1078 [2012]; Amendola v City of NewYork, 89 AD3d 775 [2011]; Schiano v Mijul, Inc., 79 AD3d 726 [2010]; Van Dina v St. Francis Hosp.,Roslyn, N.Y., 45 AD3d 673, 674 [2007]). This burden cannot be satisfiedmerely by pointing to gaps in the plaintiff's case (see Maio v John Andrew, Inc., 85 AD3d 741, 742 [2011];Stroppel v Wal-Mart Stores,Inc., 53 AD3d 651, 653 [2008]; Picart v Brookhaven Country Day School, 37 AD3d 798,799 [2007]).
Here, in support of that branch of their motion which was for summary judgmentdismissing the complaint insofar as asserted against them, the Sunrise Mall defendantssubmitted, inter alia, a transcript of the deposition testimony of the plaintiff, who claimedthat she slipped and fell on a plastic mat in a GameStop store in the Sunrise Mall. Theplaintiff testified that, at the time of her fall, the carpeting in the store was wet. Further,they proffered the transcript of the deposition testimony of an assistant manager of theSunrise Mall, who testified that, several hours prior to the plaintiff's accident, there hadbeen flooding in the mall due to substantial rain. The assistant manager testified that hedid not know whether water from the flooding had entered the GameStop store, and didnot know what steps the Sunrise Mall defendants took to address conditions which werethe result of the entry of water into the mall. Additional evidence established that theSunrise Mall defendants were responsible for, inter alia, maintaining the common areasof the mall.
Based upon this evidence, the Sunrise Mall defendants failed to establish, primafacie, that they did not create the condition which allegedly led to the plaintiff's fall orthat they did not have actual or constructive notice of that condition (see Johnson vCulinary Inst. of Am., 95 AD3d at 1079; Amendola v City of New York, 89AD3d at 776; Van Dina v St. Francis Hosp., Roslyn, N.Y., 45 AD3d at 674; Roussos v Ciccotto, 15 AD3d641, 643 [2005]).
With respect to the issue of whether the Sunrise Mall defendants created a hazardouscondition, they failed to establish their prima facie entitlement to judgment as a matter oflaw based on their contention that the water condition at the premises was caused by anact of God. For a loss to be considered the result of an act of God, human activitiescannot have contributed to it in any degree (see Moore v Gottlieb, 46 AD3d 775 [2007]; Fulgum v Town of Cortlandt,2 AD3d 775, 777 [2003]; Cangialosi v Hallen Constr. Corp., 282 AD2d565, 566 [2001]). Here, the Sunrise Mall defendants failed to establish, prima facie, thatthe alleged wet condition at the premises was caused solely by an act of God, and wasnot the consequence of their own negligence (see Moore v Gottlieb, 46 AD3d at775; Fulgum v Town of Cortlandt, 2 AD3d at 777; cf. Cangialosi v HallenConstr. Corp., 282 AD2d at 566).
As the Sunrise Mall defendants failed to establish their prima facie entitlement tojudgment as a matter of law, that branch of their motion which was for summaryjudgment dismissing the complaint insofar as asserted as against them was properlydenied, regardless of the sufficiency of the opposing papers (see Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851, 852 [1985]).
That branch of the Sunrise Mall defendants' motion which was for summaryjudgment on their cross claims for defense and indemnification from the GameStopdefendants was also properly denied. A party's right to contractual indemnificationdepends upon the specific language of the relevant contract (see Alfaro v 65 W. 13thAcquisition, LLC, 74 AD3d 1255 [2010]; Sherry v Wal-Mart Stores E., L.P., 67 AD3d 992, 994[2009]; Canela v TLH 140Perry St., LLC, 47 AD3d 743, 744 [2008]). Here, the subject lease provided thatGameStop, as tenant, was required to "defend and save Landlord harmless andindemnified from all injury, loss, claims or damage (including attorney's fees anddisbursements) to any Person or property, arising from, related to, or in connection withthe use or occupancy of the Demised Premises . . . excluding, however, anyfault or negligence by Landlord, its agents, servants, and contractors." As the SunriseMall defendants failed to establish that the plaintiff's injury did not arise from their ownnegligence, they failed to establish their prima facie entitlement to judgment as a matterof law with regard to their cross claim for contractual indemnification (see George v Marshalls of MA,Inc., 61 AD3d 925, 929 [2009]; Watters v R.D. Branch [*3]Assoc.,LP, 30 AD3d 408, 409-410 [2006]). Similarly, they failed to establish theirprima facie entitlement to judgment as a matter of law on their cross claim forcommon-law indemnification, because they failed to satisfy their prima facie burden ofestablishing that they were not negligent (see Robles v Bruhns, 99 AD3d 980, 982 [2012];George v Marshalls of MA, Inc., 61 AD3d at 930). Finally, since the GameStopdefendants are not insurers, their duty to defend was no broader than their duty toindemnify (see Bellefleur vNewark Beth Israel Med. Ctr., 66 AD3d 807, 809 [2009]; George vMarshalls of MA, Inc., 61 AD3d at 930; Bryde v CVS Pharmacy, 61 AD3d 907, 908 [2009]).Rivera, J.P., Balkin, Dickerson and Cohen, JJ., concur.