Opinion
No. 9744/10.
2012-11-21
Leticia N. HILLIARD, Plaintiff, v. SONY CORPORATION OF AMERICA and Health Fitness Corporation, Defendant.
ROBERT J. McDONALD, J.
The following papers numbered 1 to 21 read on this motion by Health Fitness Corp. (HFC), for summary judgment in its favor or, alternatively, for summary judgment in its favor on its claim for contractual indemnification from Sony Music of America (Sony); and motion by Sony for summary judgment in its favor dismissing the complaint and all cross claims against it pursuant to CPLR 3212.
Papers
Numbered
Notices of Motions—Affidavits—Exhibits1—8
Answering Affidavits—Exhibits9—16
Reply Affidavits7—21
Upon the foregoing papers it is ordered that the motions are denied for reasons noted below.
Plaintiff in this negligence action seeks damages for personal injuries sustained on April 9, 2009, while exercising at a gym facility located at 550 Madison Avenue, New York (premises). Sony owned the premises where the accident occurred. HFC operated, managed and controlled the fitness facility where the accident occurred. The complaint alleges that while plaintiff was walking towards an exercise ball resting on the floor of an exercise room at the gym, a ceiling tile supporting the net holding workout balls fell, striking plaintiff in the head. It is alleged, inter alia, that Sony and HFC were careless, reckless and negligent in the management, control and maintenance of the facility with regards to the ceiling tiles and the suspended net which held the “workout balls.” Both defendants move to dismiss the complaint. Plaintiff opposes the motions.
Facts
Plaintiff alleges that she was injured at the Fitness Center located at 550 Madison Avenue, in New York City. The HFC is located within the premises leased to Sony. Plaintiff alleges that she was injured when she attempted to retrieve a fitness ball that was suspended (in a net) from a ceiling tile. Both the net and the ceiling tiles fell on plaintiff causing injury to her.
At her examination before trial, plaintiff testified as follows: she joined the gym located in the basement of her office building. She did exercises with a ball, lifting the ball over her head and to the side. At some point, she stopped working out with the ball. She then found herself in the nurse's office. Her last recollection before being in the nurse's office was that she had the ball in her hand and was doing arm exercises. She asked “Megan”, a gym employee what had happened and was told that the ceiling tile had fallen on her head.
Robert Zelony testified on behalf of Sony as follows: he is the general manager of facilities for Sony Corporation of America. The owner of the building is 550 Madison Avenue Trust. As the facility manager, there is no one that has superior responsibility above him with regards to “facility management” of the building. Prior to April 9, 2009, there was a contractual relationship between Sony and HFC. Zelony executed the contract with HFC on behalf of Sony. HFC operates as a health or fitness facility within the premises of 550 Madison Avenue. Zelony dealt with Kim Diamond at HFC, who had primary responsibility for the running of the fitness center. She was responsible for managing the staff at HFC and also gave classes. The original build-out of the gym in 1994 encompassed building the ceiling, which was installed by Structure Tone (ST). ST was hired by Sony USA of America. Zelony did not recall there being any renovations, reinstallations or any replacement of any part of the ceiling since the original installation. HFC had nothing to do with the installation of any ductwork or mechanical equipment that existed above the drop ceiling. If there was a minor or relatively easy repair to be done on the ceiling, the management company, “Grubb and Ellis” would handle it. If there was a major repair to be done on the ceiling of the gym, Sony Corporation of America would have hired a ceiling repair contractor. There was a one-page incident report on the Sony letterhead that described plaintiff being injured due to a fallen ceiling tile in the fitness center.
Kimberly Clark Diamond, product manager at the HFC, testified as follows: she was contacted by Sony to manage the facility and to manage the operations. The contract that HFC has with Sony memorializes the relationship that the two entities have relative to the operation of the gym within the building. Prior to plaintiff's accident on April 9, 2009, Sony facilities were responsible for making sure that the ceiling of the gym facility were in good repair. While she was at the facility as a manager, if something like a ceiling tile fell, they would call the Sony facilities help desk and it would send up the appropriate personnel. She did not recall having any problems with the ceiling tiles within the gym during the time that she was employed there. HFC did not maintain its own maintenance entity; it would call the Sony facilities. During the period prior to plaintiff's accident, no one from Sony had ever advised her that the placing of the nets or the suspending of the nets to hold the balls was “dangerous” or a problem. She does not remember seeing any cracks or holes in the ceiling tiles prior to the accident.
Meghann Paisley testified that she worked for HFC. She was a health fitness specialist who did personal training, group exercise instruction, enrolled new members and did wellness promotions. When she first started to work for HFC, she worked at 550 Madison Avenue, level B, New York, New York 10022. She left this job in 2010. Paisley stated that she knew plaintiff as a member of the HFC. The group exercise room had spinning bikes, exercise balls and free weights. The exercise balls were hung from the ceiling. She was not aware of any ceiling tiles that had fallen in the exercise room and did not see a ceiling tile missing in the exercise room or on the ground of the exercise room.
Motion by HFC
HFC moves to dismiss the complaint insofar as asserted against it on the ground, inter alia, that it did not have any maintenance or repair responsibilities regarding the ceiling of the fitness center. The record reveals, however, the HFC may have created the dangerous condition at issue. To impose liability on a defendant as a result of an allegedly dangerous condition on the premises, there must be evidence that the dangerous condition existed and that the defendant either created the condition, or had actual or constructive notice of it and failed to remedy it within a reasonable time ( see Davis v. Rochdale Vil., Inc., 63 AD3d 870, 871 [2009];Bluman v. Freeport Union Free School Dist., 5 AD3d 341, 342 [2004] ). A defendant moving for summary judgment in a negligence case has the initial burden of establishing that it neither created the alleged dangerous condition, nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see e.g. Pryzywalny v. New York City Tr. Auth., 69 AD3d 598, 598–599 [2010];Arzola v. Boston Props. Ltd. Partnership, 63 AD3d 655, 655–656 [2009];Bruk vRazag, Inc., 60 AD3d 715, 715 [2009] ). Here, HFC failed to establish, prima facie, its entitlement to judgment as a matter of law ( see Pryzywalny v. New York City Tr. Auth., 69 AD3d at 598–599;Arzola v. Boston Props. Ltd. Partnership, 63 AD3d at 655–656;Bruk v. Razag, Inc., 60 AD3d at 715.
According to the testimony of HFC's witness, the ceiling tiles were installed in 1994, and the net containing the exercise balls were frequently adhered to the ceiling tile. Clearly, HFC created the alleged dangerous condition, and contrary to defendant's contention, it failed to establish, prima facie, that the condition which allegedly caused the plaintiff's accident was not hazardous ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986] ). In view of the defendant's failure to meet its prima facie burden, its motion for summary judgment dismissing the complaint is properly denied, and the court need not review the sufficiency of the plaintiff's opposition papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 [1985] ).
The branch of the motion by HFC which is to dismiss the complaint insofar as asserted against it on the ground that plaintiff signed a release exempting them from liability, is denied. Generally when a contract includes a release which removes liability from a defendant, the release is enforceable where the language of the exculpatory agreement expresses in unequivocal terms the intention of the parties to relieve a defendant of liability for the defendant's negligence (Bacchiocchi v. Ranch Parachute Club, Ltd., 273 A.D.2d 173 [2000] ).General Obligations Law § 5–326 renders contract clauses which release certain enumerated entities from liability void as against public policy.” (Bacchiocchi v. Ranch Parachute Club, Ltd., 273 A.D.2d 173,supra ). However, here the court finds merit in plaintiff's argument that the release is unenforceable because it did not specifically state that plaintiff was agreeing to exempt defendant from liability arising out of its own negligence. While “the law grudgingly accepts the proposition that [tortfeasors] may contract away their liability for negligently caused injuries, they may do so only on the condition that their intention be expressed clearly and in unequivocal terms' “ (Gross v. Sweet, 49 N.Y.2d 102, 110 [1979], quoting Willard Van Dyke Prods. v. Eastman Kodak Co., 12 N.Y.2d 301, 305 [1963] ). As a result, any agreement that purports to release a tortfeasor from the effects of its own acts or omissions must “plainly and precisely [state] that the limitation of liability extends to negligence or other fault of the party attempting to shed his [or her] ordinary responsibility' “ (Gross v. Sweet, 49 N.Y.2d at 107, quoting Howard v. Handler Bros. & Winell, Inc., 279 App.Div. 72, 76 [1951],affd. 303 N.Y. 990 [1952] ). Releases that merely waive any and all claims arising in the future cannot be enforced because they fail to advise the signor that the waiver extends to claims that might arise from the defendant's own negligence ( see e .g. Trummer v. Niewisch, 17 AD3d 349 [2005],lv. denied5 NY3d 712 [2005];Alexander v. Kendall Cent. School Dist., 221 A.D.2d 898, 899 [1995];Long v. State of New York, 158 A.D.2d 778, 780 [1990];Sivaslian v. Rawlins, 88 A.D.2d 703, 703 [1982] ).
Finally, the branch of the motion by HFC which is for indemnification from Sony is denied as premature. Where, as here, a triable issue of fact exists regarding the indemnitee's negligence, summary judgment on a claim for contractual indemnification must be denied as premature ( see Bellefleur v. Newark Beth Israel Medical Center, 66 AD3d 807, 808 [2009];State of New York v. Travelers Prop. Cas. Ins. Co., 280 A.D.2d 756, 757–758 [2001] ).
Motion by Sony
The branch of the motion by Sony which is to dismiss the complaint on the ground that plaintiff cannot prove causation because she could not remember the ceiling tile falling on her head, is denied. A plaintiff with no recollection of an accident can establish negligence wholly through circumstantial evidence and is not “required to rule out all plausible variables and factors that could have caused or contributed to the accident,” but “need only prove that it was more likely' or more reasonable' that the alleged injury was caused by the defendant's negligence” than by some other cause (Gayle v. City of New York, 92 N.Y.2d 936, 937 [1998] [internal citations omitted]; see Schneider v. Kings Hwy. Hosp. Ctr., 67 N.Y.2d 743, 744 [1986] ). The proof must render other causes sufficiently remote such that the jury can base its verdict on logical inferences drawn from the evidence, not merely on speculation ( see Gayle v. City of New York, 92 N.Y.2d at 937;Schneider v. Kings Hwy. Hosp. Ctr., 67 N.Y.2d at 744).
Here, viewing the evidence in the light most favorable to the plaintiff (see e.g. Branham v. Loews Orpheum Cinemas, Inc., 8 NY3d 931, 931 [2007] ), plaintiff's testimony that she was exercising beneath the tiles when she was injured and that the tiles appeared to be damaged prior to the accident, coupled with evidence of two incident reports prepared in the normal course of business indicating that plaintiff was hit in the head by a fallen ceiling tile would be sufficient to establish that the ceiling tile fell and struck plaintiff.
The branch of the motion by Sony which is to dismiss on the ground that it lacked notice of the condition is also denied. Although plaintiff will bear the burden at trial of proving that defendant had actual or constructive notice of the dangerous condition, on a motion for summary judgment defendant bears the burden of establishing lack of notice as a matter of law (Carrillo v. PM Realty Group, 16 AD3d 611, 612 [2005] ). This burden cannot be satisfied merely by pointing out gaps in the plaintiff's case, as the defendant did here ( see Pierre–Louis v. DeLonghi Am., Inc., 66 AD3d 857 [2009];Baines v. G & D Ventures, Inc., 64 AD3d 528, 529 [2009];Totten v. Cumberland Farms, Inc., 57 AD3d 653 [2008] ).
Conclusion
The motion by HFC for summary judgment in its favor and, alternatively for summary judgment on its claim for contractual indemnification from Sony, is denied.
The motion by Sony for summary judgment in its favor dismissing all claims and cross claims against it, is denied.