| LaGuarina v Metropolitan Tr. Auth. |
| 2013 NY Slip Op 05800 [109 AD3d 793] |
| September 11, 2013 |
| Appellate Division, Second Department |
| Richard LaGuarina et al.,Respondents, v Metropolitan Transit Authority et al., Defendants andThird-Party Plaintiffs-Respondents-Appellants. Allright Corporation, Defendant andThird-Party Defendant/Second Third-Party Plaintiff-Appellant-Respondent, and SamuelCockburn & Sons, Inc., Defendant and Second Third-PartyDefendant-Respondent-Appellant, et al., Defendant. |
—[*1] Landman Corsi Ballaine & Ford, P.C., New York, N.Y. (William G. Ballaine andJennifer Wu of counsel), for defendants and third-party plaintiffs-respondents-appellants. Miranda Sambursky Slone Sklarin Verveniotis, LLP, Elmsford, N.Y. (Michael D.Neri of counsel), for defendant and second third-party defendant-respondent-appellant. Kantrowitz, Goldhamer & Graifman, P.C., Chestnut Ridge, N.Y. (Michael L.Braunstein of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant andthird-party defendant/second third-party plaintiff appeals, as limited by its brief, from somuch of an order of the Supreme Court, Westchester County (O. Bellantoni, J.), enteredJanuary 6, 2012, as denied its motion for summary judgment dismissing the amendedcomplaint insofar as asserted against it and for summary judgment dismissing thethird-party complaint, or, in the alternative, for summary judgment on the second causeof action asserted in its second third-party complaint; the defendant and secondthird-party defendant cross-appeals, as limited by its brief, from so much of the sameorder as denied its motion for summary judgment dismissing the amended complaint andall cross claims insofar as asserted against it and for summary judgment dismissing thesecond third-party complaint; and the defendants and third-party plaintiffs cross-appeal,as limited by their brief, from so much of the same order as denied those branches oftheir motion which were for summary judgment on the cause of action for contractualindemnification asserted against Allright Corporation in their third-party complaint andfor summary judgment on their cross claim for contractual indemnification againstSamuel Cockburn & Sons, Inc.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, withone bill of costs payable to the plaintiffs by the appellants appearing separately and filing[*2]separate briefs.
The injured plaintiff allegedly slipped and fell while crossing over a mound of snowbetween the street and the sidewalk at the Metro-North commuter railroad station inPelham. According to the injured plaintiff, mounds of snow had been piled partially inthe parking area and partially at the curb, blocking pedestrian access to the sidewalkleading up to the station. The injured plaintiff, and his wife suing derivatively,commenced this action against the Metropolitan Transportation Authority andMetro-North Commuter Railroad Company (hereinafter together the Metro-Northdefendants), as well as against Allright Corporation (hereinafter Allright), whichoperated the parking lot pursuant to a contract with the Metro-North defendants, andSamuel Cockburn & Sons, Inc. (hereinafter SCS), which had contracted with Allright toperform snow and ice removal at the parking lot. Pursuant to the contract betweenMetro-North and Allright, Metro-North was responsible for clearing the snow on thesidewalk and Allright was responsible for clearing the snow in the parking area.
Allright moved, inter alia, for summary judgment dismissing the amended complaintinsofar as asserted against it and for summary judgment dismissing the Metro-Northdefendants' claim for contractual indemnification against it, or, in the alternative, forsummary judgment on its claims for common-law and contractual indemnificationagainst SCS. SCS moved, inter alia, for summary judgment dismissing the amendedcomplaint insofar as asserted against it and for summary judgment dismissing Allright'sclaims for common-law and contractual indemnification against it. The Metro-Northdefendants moved, inter alia, for summary judgment on their claims for contractualindemnification asserted against Allright and SCS. The Supreme Court denied themotions.
"Imposition of liability for a dangerous condition on property must be predicatedupon occupancy, ownership, control, or special use of the premises" (Velez v Captain Luna's Mar.,74 AD3d 1191, 1192 [2010]; see Logatto v City of New York, 51 AD3d 984 [2008]; Canaan v Costco WholesaleMembership, Inc., 49 AD3d 583, 584-585 [2008]; Schwalb v Kulaski, 29 AD3d563, 564 [2006]). " 'Where none is present, a party cannot be held liable for injuriescaused by the dangerous or defective condition of the property' " (Velez v CaptainLuna's Mar., 74 AD3d at 1192, quoting Turrisi v Ponderosa, Inc., 179 AD2d956, 957 [1992]; see Usman vAlexander's Rego Shopping Ctr., Inc., 11 AD3d 450, 451 [2004]).
Here, Allright alleges that it is only responsible for maintaining the parking area atthe Pelham station, and that it is not responsible for maintaining the curb and sidewalkwhere the injured plaintiff allegedly fell. Contrary to Allright's contentions, it failed tomeet its prima facie burden of demonstrating its entitlement to judgment as a matter oflaw dismissing the amended complaint insofar as asserted against it, as the preciselocation of the injured plaintiff's fall cannot be determined from the record (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Moreover, there are triableissues of fact as to whether Allright had constructive notice of the hazard which allegedlycaused the subject accident and whether Allright was negligent in failing to direct SCS toclear that hazard pursuant to the terms of Allright's contract with SCS. Accordingly, theSupreme Court properly denied that branch of Allright's motion which was for summaryjudgment dismissing the amended complaint insofar as asserted against it.
A contractor may be held liable for injuries to a third party where, in undertaking torender services, the contractor entirely displaces the duty of the property owner tomaintain the premises in a safe condition, the injured party relies on the contractor'scontinued performance under the agreement, or the contractor negligently creates orexacerbates a dangerous condition (see Espinal v Melville Snow Contrs., 98NY2d 136, 141-142 [2002]; Mathey v Metropolitan Transp. Auth., 95 AD3d 842,844-845 [2012]; Foster vHerbert Slepoy Corp., 76 AD3d 210, 213 [2010]; Lehman v North GreenwichLandscaping, LLC, 65 AD3d 1291, 1292 [2009], affd 16 NY3d 747[2011]; Pavlovich v Wade Assoc., 274 AD2d 382, 382-383 [2000]). SCSdemonstrated its prima facie entitlement to judgment as a matter of law dismissing theamended complaint insofar as asserted against it (see Alvarez v Prospect Hosp.,68 NY2d at 324) by demonstrating that the injured plaintiff was not a party to the snowand ice removal contract, and that it did not owe a duty to him (see Espinal v MelvilleSnow Contrs., 98 NY2d at 141-142; Mathey v Metropolitan Transp. Auth.,95 AD3d at 845; Foster v Herbert Slepoy Corp., 76 AD3d at 214). In opposition,however, the plaintiffs raised a triable issue of fact as to whether [*3]SCS's alleged negligence created or exacerbated the hazardwhich was a proximate cause of the accident (see Gushin v Whispering Hills Condominium I, 96 AD3d721, 722 [2012]; Elsey vClark Trading Corp., 57 AD3d 1330, 1332 [2008]). Accordingly, the SupremeCourt properly denied that branch of SCS's motion which was for summary judgmentdismissing the amended complaint insofar as asserted against it.
The Supreme Court properly denied those branches of Allright's motion which werefor summary judgment dismissing Metro-North's claim for contractual indemnificationagainst it and for summary judgment on its claim for common-law and contractualindemnification against SCS, because triable issues of fact exist as to the allegednegligence of Allright, Metro-North, and SCS in creating and failing to clear the moundof snow which caused the injured plaintiff's fall (see Mathey v Metropolitan Transp.Auth., 95 AD3d at 845; Watters v R.D. Branch Assoc., LP, 30 AD3d 408 [2006];Boskey v Gazza Props., 248 AD2d 344, 346 [1998]).
In light of the existence of triable issues of fact as to the negligence of Allright,Metro-North, and SCS, the Supreme Court also properly denied those branches ofMetro-North's motion which were for summary judgment on its claims for common-lawand contractual indemnification against Allright and SCS, and that branch of SCS'smotion which was for summary judgment dismissing Allright's claim for common-lawand contractual indemnification against it. Rivera, J.P., Skelos, Leventhal and Lott, JJ.,concur.