| Jenkins v Related Cos., L.P. |
| 2014 NY Slip Op 00727 [114 AD3d 435] |
| February 6, 2014 |
| Appellate Division, First Department |
| Robert Jenkins, Respondent, v The RelatedCompanies, L.P., et al., Respondents, and W5 Group, LLC, Doing Business as WaldorfDemolition, Appellant. |
—[*1] Sacks & Sacks, LLP, New York (Scott N. Singer of counsel), for Robert Jenkins,respondent. London Fischer, LLP, New York (Michael J. Carro of counsel), for The RelatedCompanies, L.P., 42nd and 10th Associates, L.L.C. and Tishman ConstructionCorporation of NY, respondents.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered June 7,2013, which, insofar as appealed from as limited by the briefs, denied the motion ofdefendant W5 Group, LLC doing business as Waldorf Demolition (Waldorf) forsummary judgment dismissing the complaint as against it, and granted the cross motionof defendants The Related Companies, L.P., 42nd and 10th Associates, LLC, andTishman Construction Corporation (collectively construction defendants) for summary judgment on their contractual indemnificationclaim against Waldorf, unanimously affirmed, without costs.
On December 28, 2010, plaintiff, a glazier for a nonparty subcontractor, slipped andfell on ice while walking on an outdoor setback of a building under construction. The construction defendants included the owner of the premises, and the general contractorand construction manager on the project. Defendant Waldorf was the general cleanupcontractor pursuant to a contract, and had agreed to provide additional "blizzard stormsnow removal" services in response to a blizzard that occurred between December 26,2010 and December 28, 2010.
Waldorf's motion for summary judgment was properly denied as the record presentsa triable issue of fact as to whether Waldorf owed plaintiff a duty of care by having"launched a force or instrument of harm" in failing to exercise reasonable care in theperformance of its snow and ice removal duties (Espinal v Melville SnowContrs., 98 NY2d 136, 141 [2002] [internal quotation marks omitted]). Theevidence, including photographs and videos taken at the scene of the accident showingthe icy condition and deposition testimony that there was no sand or salt in the areawhere plaintiff fell, raises questions as to whether Waldorf had adequately salted the[*2]pathway, and therefore, whether it created orexacerbated the hazardous ice condition (see Ramirez v BRI Realty, 2 AD3d 369[1st Dept 2003]; Figueroa v Lazarus Burman Assoc., 269 AD2d 215 [1st Dept2000]).
The motion court properly granted the construction defendants' cross motion forsummary judgment on their contractual indemnification claim against Waldorf. Theparties' contract contains a broad indemnification provision and does not require ashowing of negligence on Waldorf's part. Moreover, given the lack of evidence of activenegligence on the part of the construction defendants, they are entitled to full, not conditional, indemnification (see Fiorentino v Atlas ParkLLC, 95 AD3d 424 [1st Dept 2012]; cf. Cuomo v 53rd & 2nd Assoc., LLC, 111 AD3d 548 [1stDept 2013]). Concur—Gonzalez, P.J., Andrias, Saxe, Richter and Clark, JJ.