Opinion
No. 2021-33432 Index No. 600207/2018
01-26-2021
G10VANNA CAREY Plaintiff, v. WALT WHITMAN MALL, LLC. ABB RESTAURANT GROUP, INC., d/b/a GASTRONOMY KITCHEN BY CIRELLA'S and SAKS FIFTH AVENUE. LLC. Defendants
FELDMAN KRAMER & MONACO, P.C. Attorney for Plaintiff. MARSHALL DENNEHY WARNER. ESQS. Attorney for Defendant. AHMUTY. DEMERS & MCMANUS, ESQS. Attorney for Defendant.
Unpublished Opinion
FELDMAN KRAMER & MONACO, P.C. Attorney for Plaintiff.
MARSHALL DENNEHY WARNER. ESQS. Attorney for Defendant.
AHMUTY. DEMERS & MCMANUS, ESQS. Attorney for Defendant.
PRESENT: Hon. JOSEPH FARNETI Acting Justice.
Hon. Joseph Farneti Acting Justice.
Upon the following papers read on thee-filed motions for summary judgment: Notice of Motion/Order to Show Cause and supporting papers by ABB Restaurant Group, Inc.. filed December 19, 2019. and by Wait Whitman Mall, LLC and Saks Fifth Avenue. LLC. Hied March 4, 2020; Notice of Cross Motion and supporting papers ___; Answering Affidavits and supporting papers by plaintiff, filed July 10. 2020: Replying Affidavits and supporting papers by ABB Restaurant Group. Inc.. filed September 8. 2020; Other ___; it is
ORDERED that the motion by defendant ABB Restaurant Group, Inc. for summary judgment dismissing the complaint and cross claims asserted against it is granted to the extent that the complaint and cross claims asserted against it for common-law indemnification and contribution are dismissed, and is otherwise denied: and it is further
ORDERED that the motion by defendants Wait Whitman Mall, LLC, and Saks Fifth Avenue, LLC, for summary judgment dismissing the complaint and cross claims asserted against them, and for judgment in their favor on their cross claim for contractual indemnification, is granted to the extent that the cross claims asserted against them for contribution and common-law indemnification are dismissed. and is otherwise denied.
In this personal injury action, plaintiff, Giovanna Carey, alleges that she slipped and fell on water in a premises operated by defendant ABB Restaurant Group. Inc. d/b/a Gastronomy Kitchen by Cirella's ("ABB") as a restaurant pursuant to a written agreement with defendant Saks Fifth Avenue. LLC. The premises was allegedly owned by defendant Walt Whitman Mall. LLC ("WWM"). The incident happened on December 27, 2016. ABB interposed cross claims against Saks Fifth Avenue. LLC, and WWM for contribution, common-law indemnification, and contractual indemnification. Saks Fifth Avenue. LLC. and WWM asserted cross claims against ABB for contribution, common-law indemnification, contractual indemnification, and failure to procure insurance.
ABB now seeks summary judgment dismissing the complaint and all cross claims asserted against it. In support of its motion. ABB submits, among other things, the pleadings, transcripts of the depositions of plaintiff and Kyriaki Kalaitzidis, and a surveillance video. In opposition, plaintiff submits, among other things, her affidavit, a receipt, and a photograph.
On a motion for summary judgment, the movant has the burden to show that it is entitled to judgment as a matter of law and that there are no disputed issues of material fact (CPLR 3212; Matter of New York City Asbestos Litig., 33 N.Y.3d 20, 99 N.Y.S.3d 734 [2019]). If the movant meets its burden. then the non-movant must show that there is a material issue of fact to be resolved at trial (Matter of Eighth Jud. Dist. Asbestos Litig., 33 N.Y.3d 488. 105 N.Y.S.3d 353 [2019]). If the movant does not meet its burden, then the motion must be denied without consideration of any opposing papers (Vega v Restani Constr. Corp., 18NY3d 499, 942 N.Y.S.2d 13 [2012]). On summary judgment, the Court must view the evidence in the light most favorable to the non-moving party (id).
A defendant has constructive notice of a defect "when the defect is visible and apparent, and existed for a sufficient length of time before the accident that it reasonably could have been discovered and corrected" (Butts vSJF, LLC. 1 71 A.D.3d 688, 689, 97 N.Y.S.3d 219, 221 [2d Dept 2019]; see Bennett v Aileyne, 163 A.D.3d 754, 81 N.Y.S.3d 504 [2d Dept 2018]). "To meet its burden on the issue of constructive notice, a defendant is required to offer evidence as to when the accident site was last inspected" (Malloy v MontefxoreMed. Ctr„ 183 A.D.3d 811. 812. 122 N.Y.S.3d 532, 533 [2d Dept 2020]; see Merchant v New York City Tr. Auth, . 183 A.D.3d 647, 121 N.Y.S.3d 651 [2d Dept 2020]; Quinones v Starrer City, Inc., 163A.D.3d 1020, 81 N.Y.S.3d 184 [2d Dept 2018]). Evidence of general inspection practices is insufficient to show a lack of constructive notice (Lopez v Marshalls. 123 A.D.3d 981, 999 N.Y.S.2d 866 [2d Dept 2014]; Green v Albemarle, LLC 107 A.D.3d 948. 966 N.Y.S.2d 904 [2d Dept 2013]). The defendant must tender evidence about the ''particularized or specific inspection or []cleaning procedure" used (Birnbaum v New York Racing Assn., Inc.. 57 A.D.3d 598. 599. 869 N.Y.S.2d 222. 223-224 [2d Dept 2008]; see Fernandez v Festival Fun Parks, LLC. 122 A.D.3d 794. 996 N.Y.S.2d 676 [2d Dept 2014]), and those particular procedures must be reasonable as a matter of law (see generally Catalano v Tanner. 23 N.Y.3d 976. 989 N.Y.S.2d 9 [2014]). "The failure to conduct such inspections will result in the imputation of constructive notice to defendants as long as a reasonable inspection would have revealed the defective condition" (Dufrain v Mulchings. 112 A.D.3d 1212, 1213, 977 N.Y.S.2d 484. 485[3dDept2013]).
Here. ABB satisfied its prima facie burden on that branch of its motion that seeks summary judgment dismissing the complaint. Specifically. Kalaitzidis (also known as Sandy), ABB's manager, explained that she unlocked the exterior door to the restaurant and entered it at approximately 10:00 a.m. Soon after she entered, she placed two mats, a doormat and a longer mat. near the exterior entrance to the restaurant. Critically. Kalaitzidis testified that when she entered the restaurant, the floor in question was dry. Kaiaitzidis explained that the accident happened shortly thereafter; on the other hand, plaintiff stated that the accident happened around 11:00. Under either timeframe. ABB has shown that the floor was dry before the accident such that it did not have constructive notice of water or any other liquid on the floor (see Vehcci v Stop & Shop. 188 A.D.3d 436, 133 N.Y.S.3d 569 [1st Dept 2020]; Williams v New York City Horn. Auth.. 163 A.D.3d 492. 81 N.Y.S.3d 403 [1st Dept 2018]; Rodriguez v New York City Tr. Auth.. 118 A.D.3d 618. 988N.Y.S.2d 617 [1st Dept 2014]; Mueller v Hannaford Bros. Co., 276 A.D.2d 819, 713 N.Y.S.2d 789 [3d Dept 2000]). There is no evidence that ABB created a wet condition on the floor or had actual notice thereof.
The Court did not consider the surveillance video proffered by ABB. ABB, in response to plaintiffs argument that the video was not authenticated, submitted an affidavit in reply that purported to authenticate the video as "a true depiction of what transpired on December 27, 2016" (see Ramales v Pecker Iron Workers of Westchester, Inc.. 114 A.D.3d 920. 980 N.Y.S.2d 817 [2d Dept 2014] [allowing a party to authenticate evidence in reply]). But ABB has not submitted any evidence showing that the accident depicted in the video was plaintiffs accident. The time of the recording is unknown, and there is no evidence identifying plaintiff as the person in the video.
In opposition, plaintiff failed to raise a triable issue of fact. To the extent that ABB was aware that it was raining outside, that does not constitute constructive notice of a wet condition inside, and ABB was "not required to cover all of its floors with mats, nor to continuously mop up all moisture resulting from tracked-in rain" (Grib v New York City Hous. Auth, . 132 A.D.3d 725. 726. 18 N.Y.S.3d 109. 110 [2d Dept 2015] [quotation marks and citations omitted]: see Gunzburg v Quality Bldg. Servs. Corp,, 137 A.D.3d 424. 26 N.Y.S.3d 274 ; Musante v Department of Educ. of City of N. ¶., 97 A.D.3d 731, 949N.Y.S.2d 104 [2d Dept 2012]). Although plaintiff testified that the floor looked like it had been mopped, she stated that she did not see anyone with a mop. and no one told her that the floor had been mopped. As explained above, any discrepancy in the time of the accident-shortly after 10:00 a.m. or shortly after 11:00 a.m.-is immaterial. Although plaintiff alleges that Kalaitzidis repositioned the mats after the accident, such subsequent remedial measures are inadmissible to show negligence (see generally Caprara v Chrysler Corp.. 52 N.Y.2d I 14, 436 N.Y.S.2d 251 [1981]). Plaintiff s suggestion that one of ABB's employees, as opposed to a patron, created the allegedly wet condition is wholly speculative. Accordingly, the branch of ABB's motion that seeks summary judgment dismissing the complaint against it is granted.
ABB also seeks summary judgment dismissing the cross claims against it. Specifically, WWM and Saks Fifth Avenue, LLC, interposed cross claims for common-law indemnification, contractual indemnification, contribution, and failure to procure insurance. As ABB was not negligent, the cross claims for common-law indemnification and contribution must be dismissed (Stone v Williams. 64 N.Y.2d 639, 485 N.Y.S.2d 42 [1984]; Robles v Taconic Mgt. Co., LLC, 173 A.D.3d 1089. 103 N.Y.S.3d 571 [2d Dept 2019]; Tapinekis v Rivington House Health Care Facility. 17 A.D.3d 572. 793 N.Y.S.2d 484 [2d Dept 2005]}. But ABB does not provide any argument as to why the cross claims for contractual indemnification or failure to procure insurance should be dismissed. The Court cannot grant summary judgment on a rationale not urged by ABB (see Romanefli v Jones, 1 79 A.D.3d 85 1. 117 N.Y.S.3d 90 [2d Dept 2020]; Grucci v Grucci. 174 A.D.3d 790, 102 N.Y.S.3d 885 [2d Dept 2019]; Rosenblatt v St. George Health & Racquetball Assoc, LLC. 119 A.D.3d 45.984 N.Y.S.2d 40! [2d Dept 2014]). Accordingly, ABB's motion is granted to the extent that the complaint and cross claims asserted against it for contribution and common-law indemnification are dismissed, and is otherwise denied.
WWM and Saks Fifth Avenue. LLC, seek summary judgment dismissing the complaint and cross claims asserted against them, and judgment in their favor on their cross claim for contractual indemnification. In support of their motion. WWM and Saks Fifth Avenue. LLC, submit, among other things, the pleadings, transcripts of the depositions of plaintiff and Kalaitzidis, an affidavit from Kerria Smith, and a food services agreement. Neither plaintiff nor ABB opposes the motion. But even when a motion for summary judgment is unopposed, it "will be denied upon a movant's failure to establish [its] prima facie entitlement to summary judgment or where the evidence creates a question of fact" (York Ave. Dodge, Inc. v BZ Results, LLC. 95 A.D.3d 774, 774-775, 945 N.Y.S.2d 280, 281 [ 1 st Dept 2012], citing Myers v Bartholomew. 91 N.Y.2d 630, 674 N.Y.S.2d 259 [ 1998]; see Exit Empire Realty v Zilelian. 137 A.D.3d 742, 26 N.Y.S.3d 343 [2d Dept 2016]).
Both WWM and Saks Fifth Avenue, LLC. present only one argument in support of dismissal of the complaint; they cannot be liable because they were out-of-possession landlords. They rely on the food services agreement with ABB. "[A] landowner who has transferred possession and control [i.e., an out-of-possession landlord] is generally not liable for injuries caused by dangerous conditions on the property" (Henry v Hamilton Equities, Inc., 34 N.Y.3d 136. 142. 114 N.Y.S.3d 21, 25 [2019] [quotation marks and citations omitted]). "An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct" (Crosby v Southport, LLC. 169 A.D.3d 637, 639. 94 TMYS3d 109, 112 [2d Dept 2019] (quotation marks and citations omitted]; see Fajardo v Mainco El. & Etec. Corp.. 143A.D.3d759, 40N.Y.S.3d 121 [2d Dept 2016]; Mendoza v Manila Bar & Rest. Corp., 140A.D.3d 934, 33 N.Y.S.3d 448 [2d Dept 2016]). "A landlord's reservation of the right to enter property to inspect and make repairs does not in itself give rise to a duty to make repairs'" (Keum Ok Han v Kemp, Pin & Ski, LLC, 142 A.D.3d 688. 689. 36 N.Y.S.3d 883. 884 [2d Dept 2016]).
Here, plaintiff does not contend that WWM or Saks Fifth Avenue. LLC. violated a statute. But the food services agreement states that both signatories had certain cleaning responsibilities. Section 4, 12 of the agreement obligates ABB to maintain and clean the restaurant space. But section 5.3 of the agreement states thai "Saks shall, ai no expense to ABB. furnish cleaning and janitorial services ... including vacuuming services ... provided, however, that this Section 5.3 shall not diminish ABB's obligations pursuant to Section 4.12." Accordingly, Saks Fifth Avenue. LLC. has tailed to eliminate all questions of fact on this issue (see Hernandez v 34 Downing Owners Corp.. 148 A.D.3d 554. 48 N.Y.S.3d 898 [1st Dept 2017]; Quiluizaca v Tucchiarone. 115 A.D.3d 924. 982 N.Y.S.2d 524 [2d Dept 2014]: Marino v A.G. Props, of Kingston, LLC. 85 A.D.3d 1429. 926 N.Y.S.2d 678 [3d Dept 2011]; Helena v 300 Park Ave.. 306 A.D.2d 170. 763 N.Y.S.2d 542 [1st Dept 2003]: Longer v Orenstein. 295 A.D.2d 574. 744 N.Y.S.2d 218 [2d Dept 2002]). Although Saks Fifth Avenue, LLC. was not a party to the food services agreement-ABB and nonparty Saks & Company LLC were the only two signatories-Saks Fifth Avenue. LLC, nonetheless assumes that the agreement delineates its rights and obligations.
WWM and Saks Fifth Avenue. LLC. claim that WWM leased space to Saks Fifth Avenue. LLC. which in turn leased the restaurant space to ABB. WWM has failed to submit the lease between it and Saks Fifth Avenue, LLC, and, therefore, has failed to satisfy its prima facie burden (Richichi v CVS Pharmacy. 127 A.D.3d 951, 7 N.Y.S.3d 398 [2d Dept 2015J; Lalkata v 39-15 Skillman Realty Co., LLC. 63 A.D.3d889, 882 N.Y.S.2d 185 [2d Dept 2009]). Thus, so much of WWM and Saks Fifth Avenue. LLC's motion that seeks summary judgment dismissing the complaint is denied.
WWM and Saks Fifth Avenue, LLC. also seek summary judgment in their favor on their cross claim for contractual indemnification against ABB. Section 14.3 of the food services agreement states that ""ABB shall indemnify, defend and hold Saks, its affiliates, officers, directors, employees, agents and representatives ... harmless from and against any liability, loss, claim, or damage, including reasonable outside attorney fees and costs, that may result from any act of commission or omission by ABB . . . arising out of, related to. or alleged to arise out of or relate to" the provision of restaurant services or the operation of the restaurant.
So much of WWM and Saks Fifth Avenue. LLC's motion as seeks judgment in their favor on their cross claim against ABB for contractual indemnification is denied. Neither WWM nor Saks Fifth Avenue. LLC, was a signatory to the food services agreement. The food services agreement was between ABB and nonparty Saks & Company LLC. , LSaks." as used in the agreement, refers to Saks & Company LLC, according to the unnumbered paragraph at the beginning of the agreement. Nothing in the agreement requires ABB to indemnify WWM or Saks Fifth Avenue. LLC. It is unclear if Saks Fifth Avenue, LLC, is an affiliate of Saks & Company LLC. WWM and Saks Fifth Avenue. LLC, have not shown that they were in a contractual relationship with ABB that obligates ABB to indemnify them (e.g. Leiner v F. Schumacher & Co., 78 A.D.3d ! 131. 912 N.Y.S.2d 111 [2d Dept 2010]).
To the extent that WWM and Saks Fifth Avenue. LLC. direct their arguments toward the insurance procurement provisions of the food services agreement, such arguments are beyond the relief requested in their notice of motion. In any event, as explained above, neither WWM nor Saks Fifth Avenue. LLC. was a party to the food services agreement. Moreover, section 13.2 of the agreement required ABB to "name Saks & Company. LLC and Lord & Taylor Acquisition, Inc. as additional insureds" under various types of insurance. Nothing in the agreement obligated ABB to name WWM and Saks Fifth Avenue, LLC, as additional insureds, or to otherwise procure insurance for their benefit.
As the Court is dismissing the complaint against ABB. neither WWM nor Saks Fifth Avenue, LLC, will be liable in contribution or common-law indemnification to ABB. But neither WWM nor Saks Fifth Avenue, LLC, provides any argument as to why ABB's cross claim for contractual indemnification should be dismissed. The Court cannot grant summary judgment on a rationale not urged by WWM or Saks fifth Avenue, LLC (see Romanelli v Jones, supra: Grucci v Grucci supra; Rosenblatt v St George Health & Racquetball Assoc, LLC, supra). Accordingly, WWM and Saks Fifth Avenue, LLC's motion is granted to the extent that the cross claims for contribution and common-law indemnification are dismissed, and is otherwise denied.