Opinion
No. 505611/16
12-06-2022
MIRIAM GALARZA, Plaintiff(s), v. RITE AID OF NEW YORK, INC., IMAGE BY J & K LLC, and MANSION OF MAINTENANCE, INC., Defendant(s)
Unpublished Opinion
DECISION AND ORDER
KAREN B. ROTHENBERG, J.S.C.
Recitation as required by CPLR 2219(a), of the papers considered in these motions
Papers
Numbered
Order to Show Cause/Motion and Affidavits Annexed.
105-176, 200-204
Cross-motion and supporting papers......................
Answering Papers.........................................................
183-186, 190-192, 205-207
Reply Papers...................................................................
187-189, 193-195
Upon the foregoing cited papers, the Decision/Order on this motion is as follows:
In this action, defendant Image by J & K LLC [Image] moves [seq. no. 6] for an order pursuant to CPLR 3212 granting summary judgment in its favor on its cross-claims against defendant Mansion of Maintenance, Inc. [Mansion] and dismissing the plaintiff Miriam Galarza's [Galarza] complaint insofar as asserted against it. Defendant Rite Aid of New York, Inc. [Rite Aid] moves [seq. no. 7] for an order pursuant to CPLR 3212 granting summary judgment in its favor dismissing Galarza's complaint and all cross-claims asserted against it. Mansion moves [seq no. 8] for an order pursuant to CPLR 3212 granting summary judgment in its favor dismissing Galarza's complaint and all cross-claims asserted against it. Lastly, Galarza moves [seq. no. 9] for an order lifting the stay imposed in this matter and restoring the matter to the trial calendar.
On March 2, 2016, Galarza allegedly was injured when she slipped and fell on a wet, freshly mopped floor near the registers in the Rite Aid store located at 1531-34 86thStreet, Brooklyn. Galarza testified that she went to Rite Aid to purchase an item called "Flix." After retrieving the item from the aisle, she walked over to the register area to wait in line for a cashier. Once she approached the cashier, however, she realized that she had taken the wrong product off the shelf. Galarza then went to exchange the item for the correct product. As she left the register area and began walking towards the aisle, she slipped and fell. Galarza testified that it was only after she fell that she saw and felt water on the floor. Galarza further testified that prior to her accident she did not notice anyone mopping the floor and did not observe any wet floor signs in the area
Rite Aid's surveillance videos show that while Galarza was waiting on line for a register, a cleaning person placed a wet floor sign near the entrance to the line and began mopping. The sign was placed approximately 5 to 10 feet to the left/behind where Galarza was standing near rope stanchions and floor merchandise that demarcated the line. The surveillance video further shows that the cleaning person finished mopping that section of the floor in less than a minute's time and moved on to different area of the store, leaving the yellow wet floor sign in place. Less than one minute later, Galarza is seen walking away from the register toward the section of floor that had just been mopped, and falls.
Prior to the accident date, Image had entered into a contract with Rite Aid to provide cleaning services at the store, which were then subcontracted out to Mansion. Plaintiff commenced this action against the defendants to recover damages for her personal injuries, alleging, among other things, that they were negligent in maintaining the premises and in creating the dangerous condition. Rite Aid asserted cross-claims against Image and Mansion for common-law and contractual indemnification, and contribution. Image asserted cross-claims against Rite Aid and Mansion for common-law indemnification and contribution. And, Mansion asserted cross-claims against Rite Aid and Image for common-law and contractual indemnification, and contribution.
" 'Liability for a dangerous condition on property is generally predicated upon ownership, occupancy, control, or special use of the property'" (Bartlett v. City of New York, 169 A.D.3d 629, 630 [2d Dept 2019] quoting Donatien v. Long Is. Coll. Hosp., 153 A.D.3d 600, 600-601 [2d Dept 2017]). "A contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party" (Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d 253, 257 [2007], quoting Espinal v Melville Snow Contrs., 98 N.Y.2d 136, 138 [2002]). However, "a contractor may be said to have assumed a duty of care and, thus, be potentially liable in tort, to third persons when the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm" (Bruce v Edgewater Industrial Park, LLC, 169 A.D.3d 753, 754 [2d Dept 2019]). "Where such a duty is alleged, a defendant contractor moving for summary judgment has the burden of eliminating all material issues of fact, and establishing conclusively, that it did not launch a force or instrument of harm by negligently creating the dangerous or defective condition complained of (id. at 754)
Turning to Mansion's motion first, its submissions fail to demonstrate its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it, as it fails to establish that it did not create or launch an instrument of harm. Contrary to Mansion's contention, the presence of the wet floor sign does not automatically absolve it of negligence (see Hamilton v 3339 Park Development LLC, 158 A.D.3d 440 [1st Dept 2018]). Here, there is a question of fact as to the adequacy of the warning, given Galarza's testimony that she did not see the sign that had been placed two minutes before her accident, that the floor in the area was otherwise dry, and the surveillance video showing that the sign's placement near/behind the rope stanchion and floor merchandise may have limited its visibility from the register area (see Ramsey v Temco Service Industries, Inc., 179 A.D.3d 726 [2d Dept 2020]).
Mansion also fails to establish its prima facie entitlement to judgment as a matter of law dismissing Image's cross-claims for indemnification. Contrary to Mansion's contentions, there is no merit to its argument that the court lacks jurisdiction over Image's cross-claims for lack of service of the answer and cross-claims on Mansion. Mansion's active participation in this litigation for several years, without ever raising the issue of jurisdiction, indicates Mansion intended to submit to the court's jurisdiction over the cross-claims and waived the issue of jurisdiction (see Eastern Savings Bank, FSB v Campbell, 167 A.D.3d 712 [2d Dept 2018]).
However, Mansion establishes its entitlement to judgment as matter of law dismissing Rite Aid's cross-claim seeking contractual indemnification (see Corley v Country Squire Apts. Inc., 32 A.D.3d 978 [2d Dept 2006]). Here, there is no evidence that the service agreements imposed any obligation on Mansion to indemnify Rite Aid. In opposition, Rite Aid fails to raise a triable issue of fact (see Foster v Herbert Slepoy Corp., 76 A.D.3d 210 [2d Dept 2010]).
Turning to Image's motion, it establishes, prima facie, entitlement to dismissal of the complaint by demonstrating that Galarza was not a party to its cleaning services contracts with Rite Aid and Mansion, and, therefore, owed her no duty of care (see Hagan v City of New York, 166 A.D.3d 590 [2d Dept 2018]). Moreover, "[s]ince [Galarza] did not allege facts in the pleadings that would establish the applicability of any of the Espinal exceptions, [Image] was not required to affirmatively demonstrate that these exceptions were inapplicable in order to establish its prima facie entitlement to judgment as a matter of law (id. at 592). In opposition, Galarza fails to raise a triable issue of fact as to the applicability of one or more of the three Espinal exceptions (id).
Image also demonstrates, prima facie, that it is not vicariously liable for the alleged negligence of Mansion's employees. As a general rule, "a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor's negligent acts" (Pesante v Vertical Inds. Development, Corp., 142 A.D.3d 656, 657 [2d Dept 2016] [internal quotation marks and citations omitted]). Exceptions to this general rule against vicarious liability for the acts of an independent contractor include when the employer directs, controls or supervises the contractor, or where the work is inherently dangerous (see Bennett v State Farm Fire and Casualty Company, 198 A.D.3d 857, 859 [2d Dept 2021]; Duffy v Wal-Mart Stores, Inc., 24 A.D.3d 1156 [3d Dept 2005]). Here, the testimony of both Image and Mansion's witnesses sufficiently demonstrate that Image did not supervise, direct, or control the work, and that Mansion was responsible for providing its own equipment and supplies to perform its cleaning services (see Saini v Tonju Associates, 299 A.D.2d 244 [1st Dept 2002]). Furthermore, mopping floors does not constitute an inherently dangerous activity. Therefore, Image cannot be held vicariously liable for any alleged negligence of Mansion's employees (see Burgdoerfer v CLK/HP 90 Merrick LLC, 170 A.D.3d 427 [2d Dept 2019]). In opposition, Galarza fails to raise a triable issue of fact.
Image further demonstrates that it is entitled to contractual indemnification from Mansion for its attorneys' fees and costs incurred in the defense of this action. The broad indemnification clause of the contract between Image and Mansion was triggered because Galarza's alleged injuries arose out of the performance of the services contemplated by the contracts (see Ciaravino v Bulldog Nat. Logistics, LLC, 146 A.D.3d 928 [2d Dept 2017]). In opposition, Mansion fails to raise a triable issue of fact.
Rite Aid also demonstrate its prima facie entitlement to judgment as a matter of law dismissing the complaint and all cross-claims asserted against it. In a slip and fall action, a store operator moving for summary judgment has the burden of demonstrating, prima facie, that it did not create the allegedly dangerous condition or have actual or constructive notice of it (see Parietti v Wal-Mart Stores, Inc., 29 N.Y.3d 1136 [2017]). Here, the evidence submitted in support of Rite Aid's motion including the parties' deposition testimonies, as well as the surveillance videos of the accident, establish that it did not create or have actual or constructive notice of the allegedly dangerous condition that caused this accident (see Olivares v Pollack 111 Bruce, LLC, 197 A.D.3d 481 [2d Dept 2021]).
The evidence further demonstrates that Rite Aid did not supervise, direct or control the work, and, therefore, is not vicariously liable for the alleged negligence of Mansion's employees (see Burgdoerfer, supra).
Finally, as the motions for summary judgment have now been decided, it is appropriate to lift the stay in this matter and restore the action to the trial calendar .
Accordingly, it is hereby
Ordered, that Mansion's motion for summary judgment dismissing the plaintiff's complaint and Image's cross-claims insofar as asserted against is denied. However, the portion of Mansion's motion seeking to dismiss Rite Aid's cross-claim seeking contractual indemnification is granted; and it is further
Ordered, that Image's motion for summary judgment dismissing the plaintiffs complaint and all cross-claims asserted against it is granted. Moreover, the portion of Image's motion seeking summary judgment on its cross-claim against Mansion for contractual indemnification is granted insofar as it seeks attorney's fees and costs incurred in the defense of this action; and it is further
Ordered, that Rite Aid's motion for summary judgment dismissing the plaintiffs complaint and all cross-claims asserted against it is granted; and it is further
Ordered, that Galarza's motion to lift the stay imposed in this matter and to restore the action to the trial calendar is granted.
This constitutes the decision/order of the Court.