Opinion
Index 611655/16
01-27-2021
MICHAEL BRILLANTE and JOYCE BRILLANTE, Plaintiffs, v. MID ISLAND PHYSICAL THERAPY, PLLC and 1245 MIDDLE COUNTRY ROAD, LLC, Defendants. MICHAEL BRILLANTE and JOYCE BRILLANTE, Plaintiffs, v. EMPIRE LANDSCAPE & DESIGN, INC., Defendant. Motion Seq. No. 007 MG
Unpublished Opinion
PRESENT: Hon. Carmen Victoria St. George Justice of the Supreme Court.
DECISION/ORDER
CARMEN VICTORIA ST. GEORGE JUDGE.
The following electronically filed papers were read upon this motion:
Notice of Motion/Order to Show Cause............ 94-112
Answering Papers........................................ 114; 115
Reply....................................................... 117-118
Briefs: Plaintiffs/Petitioner's........................
Defendant's/Respondent's..................
Defendant Empire Landscape & Design, Inc. (Empire) seeks summary judgment dismissal of the complaint and any and all cross-claims asserted against it on the ground that Empire did not owe a duty of care to the injured plaintiff (Michael Brillante). Plaintiffs and the co-defendant property owner, 1245 Middle Country Road, LLC (1245), each oppose the requested relief.
Mid Island's summary judgment motion was granted by Decision and Order dated November 23, 2020.
It is undisputed that the strip mall is known as Strathmore Commons. The entire Commons is sixteen (16) acres in size, with 150, 000 square feet of building space and four hundred (400) parking spots located in its parking lot. There are approximately twenty (20) tenants, and the parking spots are shared by all tenants of the Commons, meaning that no tenants have been assigned any particular spots for their respective customers. It is further undisputed that co-defendant 1245 Middle Country Rd., LLC (1245) owns the entire strip mall, and that its property manager is Island Associates Real Estate, Inc. Defendant Empire Landscape & Design, Inc. (Empire) is the snow removal contractor hired by 1245 who had last performed services on March 5, 2015, two days before plaintiffs accident on March 7, 2015.
It is well recognized that summary judgment is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issues of fact (Andre v. Pomeroy, 35 N.Y.2d 361 [1974]). Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact (Cauthers v. Brite Ideas, LLC, 41 A.D.3d 755 [2d Dept 2007]). The Court's analysis of the evidence must be viewed in the light most favorable to the non-moving party, herein the plaintiffs and 1245 (Makaj v. Metropolitan Transportation Authority, 18 A.D.3d 625 [2d Dept 2005]).
The instant motion is timely pursuant to AO/78/20 effective March 22, 2020 that provided, "no papers shall be accepted for filing by a county clerk or a court in any matter of a type not included on the list of essential matters ..." Filing in non-essential matters, which includes this case, was resumed on May 4. 2020, pursuant to AO/87/20. The instant motion was filed on May 8, 2020. Accordingly, plaintiffs' claim that the instant motion is untimely because it was not filed on or before April 4, 2020 is unwarranted and spurious.
Empire contends that it is entitled to summary judgment because it did not owe a duty to plaintiff, pursuant to Espinal v. Melville Snow Contractors (283 A.D.2d 546 [2d Dept 2001], aff'd 98 N.Y.2d 136 [2002]). "As a general rule, a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties (citation omitted). However, in Espinal v. Melville Snow Contrs. (98 N.Y.2d 136 [2002]), the Court of Appeals identified three situations where a party who enters into a contract to render services may be said to have assumed a duty of care and thus be potentially liable in tort to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches an instrument of harm or creates or exacerbates a hazardous condition, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties, and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely (Id. at 140)" (Gus/tin v. Whispering Hills Condominium I, 96 A.D.3d 721, 722 [2d Dept 2012]; see also Koslosky v. Malmut, 149 A.D.3d 925 [2d Dept 2017]).
"As part of its prima facie showing, a contracting defendant is only required to negate the applicability of those Espinal exceptions that were expressly pleaded by the plaintiff or expressly set forth in plaintiffs bill of particulars" (Glover v. John Tyler Enterprises, Inc., 123 A.D.3d 882, 882 [2d Dept 2014]). Where a plaintiff does not plead any of the Espinal exceptions, and the snow removal contractor offers sufficient proof that the plaintiff was not a party to the contract to remove snow from the premises, the contractor has shown that it does not owe a duty of care to the plaintiff, thereby establishing its prima facie entitlement to summary judgment as a matter of law. Moreover, having established its prima facie entitlement on this basis, the defendant contractor is not required to affirmatively demonstrate that the Espinal exceptions do not apply (Turner v. Birchwood on the Green Owners Corp., 171 A.D.3d 1119, 1121 [2d Dept 2019]; Glover, supra at 882-883; Rudloff v. Woodland Pond Condominium Association, 109 A.D.3d 810, 811 [2d Dept 2013]; Knox v. Sodexho America, LLC, 93 A.D.3d 642, 642 [2d Dept 2012]; Henriquez v. Inserra Supermarkets, Inc., 89 A.D.3d 899, 901 [2d Dept 2011]).
In support of its motion for summary judgment, Empire submits, inter alia, the pleadings, the deposition transcripts of the parties, photographs, and copies of the contract and invoices for snow removal.
The complaint filed against Empire alleges two causes of action, one on behalf of the injured plaintiff sounding in ordinary negligence and claiming that Empire had actual notice of the alleged defective condition, and the other on behalf of the injured plaintiffs wife that is derivative in nature. Specifically, plaintiffs claim that Empire had a non-delegable duty to maintain the premises in a reasonably safe condition, and that it was negligent in doing so, thereby causing plaintiffs' injuries. There are no factual allegations in the complaint that would establish the possible applicability of any of the Espinal exceptions. Plaintiffs Bill of Particulars as to Empire is likewise devoid of any expressly pleaded allegation establishing the applicability of a single Espinal exception.
Based upon the testimony of Empire's owner, Scott Hayden, Empire had contracted with 1245 to remove snow in the subject parking lot where the injured plaintiff fell for approximately five years prior to the date of incident. During his testimony, Mr. Hayden referred to an invoice indicating that the last time his company plowed the parking lot was on March 5, 2015, two days before Michael Brillante fell. The terms of the contract called for Empire to plow snow of a depth of two inches or more.
Moreover, Robert Monahan, the property manager for 1245, testified that 1245 contracted with a third party for snow and ice removal in the parking lot of the subject premises, which contractor is Empire. At the time of Mr. Monahan's deposition in 2019, Empire was still under contract to remove snow and ice from the property. Mr. Monahan identified the November 1, 2014 contract and the invoices dated March 2, 2015 and March 5, 2015, which were marked and received into evidence as plaintiffs' exhibits at deposition, and which are collectively submitted upon this motion as Empire's Exhibit I.
The injured plaintiff testified that he did not see any snow removal occurring in the parking lot on March 7, 2015, that he had never heard of Empire, and that he had not made any complaints about the condition of the parking lot to anyone prior to his fall.
Thus, Empire has established its prima facie entitlement to summary judgment as a matter of law through evidence that the plaintiff was not a party to the snow removal contract, and that it thereby owed plaintiffs no duty of care (see Turner, supra at 1121).
Regarding dismissal of the cross-claim interposed by co-defendant 1245 for contribution and/or contractual responsibility and/or common law indemnification, there is no contractual indemnity provision or insurance requirement in the agreement identified by 1245's property manager. Also, since Empire has established its prima facie entitlement to summary judgment dismissal of the plaintiffs' complaint, Empire has accordingly established its prima facie entitlement to dismissal of the cross-claims for common law indemnity and contribution (Zabbia v. Westwood, LLC, 18 A.D.3d 542 [2d Dept 2005]).
The burden now shifts to the plaintiffs to come forward with evidence sufficient to raise a triable issue of fact as to the applicability of one or more of the three Espinal exceptions (see Henriquez, supra at 901; Foster v. Herbert Slepoy Corp., 76 A.D.3d 210, 214 [2d Dept 2010]).
In opposition, plaintiffs and 1245 each submit the affirmations of their respective counsel and they each rely upon the same deposition testimony submitted by Empire.
The testimony of the parties undisputedly establishes that the last time that Empire was present on 1245's premises (the parking lot) was on March 5, 2015, at which time Empire performed plowing/snow removal services pursuant to the contract in effect at that time.
Plaintiff and 1245 assert that questions of fact exist as to the Espinal exceptions.
Regarding a situation where the contracting party has entirely displaced the other party's duty to maintain the premises safely, the evidence in this case refutes any such scenario. The testimony and the contract authenticated by Mr. Monahan and Mr. Hayden at their respective depositions provides in relevant part that, "snow plowing services will be provided whenever there is an accumulation of 2 or more inches of snow. If snow accumulations exceed 6 inches, there will be an additional charge. . .If salt sanding is required the charge will be $175 per yrd. . If salt sanding is required with out plowing it will be up to the property manager to notify us to do so." Accordingly, "[t]his contractual undertaking is not the type of 'comprehensive and exclusive' property maintenance obligation contemplated by Palka " (Espinal, supra at 141).
The deposition testimony of Monahan further establishes that 1245 not only owns the subject premises and is responsible for operating, controlling and maintaining the entire premises, but that 1245 is responsible to maintain the parking lot where Michael Brillante fell, including snow and ice removal from that parking lot. If salt or sand was needed at the property, Mr. Monahan/1245 would rely upon a tenant calling him, or a weather forecast. Mr. Monahan does not go to the subject property every time it snows, so when asked at deposition if the tenants of the strip mall do not contact him, is it possible that Mr. Monahan will not know to tell Empire what services are required, Mr. Monahan answered, "Yes. That's possible." Thus, Empire is totally reliant upon 1245's property manager to perform any services other than snow plowing when two inches or more of snow accumulate. Mr. Monahan also testified that he did not recall receiving any complaints from any of the tenants or customers during the winter of 2015, including the date of incident, concerning any ice or snow condition in the parking lot, and he acknowledged that the invoice related to the plowing performed on March 5, 2015 was paid by the landlord. Likewise, Mr. Hayden of Empire testified that he did not receive any requests to come back to the property to remedy any condition thereat. Accordingly, 1245 retained its nondelegable duty to maintain the premises in a reasonably safe condition, and Empire did not absorb 1245's duty as a landowner to safely maintain the subject parking lot.
Plaintiffs" discussion of Persaud v. WF Jamaica, LLC (66 Misc3d 1207 [A]) is inapposite since, in that case, the snow removal contract entirely displaced the bank's responsibility to safely maintain the parking lot from ice and snow by specifically requiring the contractor to salt and sand all areas with a residue of snow and ice after snow clearing operations, and to maintain ice free parking lots for thaw and refreeze until the concern is abated for that event.
As to plaintiffs' claimed detrimental reliance upon the continued performance of the contracting party's duties, there simply is no evidence of reliance, detrimental or otherwise, in this case. Plaintiffs submit that Empire's motion should be denied because the snow removal services it provided were for the benefit of the tenants of the strip mall where co-defendant Mid Island Physical Therapy was located, and that the plaintiffs were patients of Mid Island; therefore, the plaintiffs detrimentally relied on Empire's performance of its duties under the contract. This circuitous reasoning fails. As noted, the injured plaintiff testified that he did not see any snow removal occurring in the parking lot on March 7, 2015, that he had never heard of Empire, and that he had not made any complaints about the condition of the parking lot to anyone prior to his fall. The plaintiffs' own deposition transcripts establish that they went to the strip mall on March 7, 2015, a Saturday, to drop off a prescription for physical therapy to be administered to Joyce Brillante. It is undisputed that the plaintiffs did not have an appointment with Mid Island for the day of the accident, nor did they call ahead to ensure that Mid Island was even open. When they arrived at the strip mall, they both got out of their car and walked over the parking lot, to Mid Island's door, only to discover that it was closed.
Moreover, the deposition testimony of Mr. Monahan establishes that the entire Commons/strip mall is sixteen (16) acres in size, with 150, 000 square feet of building space and four hundred (400) parking spots located in its parking lot. There are approximately twenty (20) tenants, and the parking spots are shared by all tenants of the Commons, meaning that no tenants have been assigned any particular spots for their respective customers. There is a sidewalk that runs in front of the tenants' units that is bordered by a curb from which one steps down into the parking lot. The parking lot is located in the middle of the strip mall. It is further undisputed that 1245 owns the entire strip mall, and that its property manager is Island Associates Real Estate, Inc. Given the vast size of the subject premises containing 400 parking spots shared by all 20 tenants, this is the precise set of circumstances under which courts have declined to impose liability, since "imposing liability under such circumstances could render the contracting parties liable in tort to 'an indefinite number of potential beneficiaries'" (Espinal, supra at 138-139).
Plaintiffs' reliance upon Nunez v. Lookout, LLC (2015 NY Slip Op 30542 [U]) is misplaced since that matter involved a contractor hired for the benefit of a particular tenant of a private dwelling and guests of that dwelling. In the matter before this Court, Empire's services were for the benefit of the general public, and so plaintiffs' reliance on the Nunez case does not advance their claim in this regard.
The Court turns now to the plaintiffs' and 1245's claim that there is a question of fact as to whether, in failing to exercise reasonable care in the performance of its duties, Empire launched an instrument of harm or created or exacerbated a hazardous condition in the parking lot.
Plaintiffs and 1245 contend that there is a question of fact presented as to whether Empire piled snow up against a handicapped sign designating a handicapped parking space. In furtherance of their contention, plaintiffs and 1245 point to Empire's testimony that it would typically pile snow in large piles around the parking lot on grassy areas, or near the center of the lot, near the light poles, but not against the handicapped sign, as contrasted with plaintiffs' testimony that snow was piled at that sign. Mid Island's principal testified that he never observed snow piled up against or near the handicapped parking spot/sign. In any event, even assuming the truth of the injured plaintiffs deposition testimony that there was a pile of snow against the handicapped sign located at the head of the parking space, there is no material question of fact raised in light of the total absence of any evidence indicating that any snow melted and refroze prior to plaintiffs fall (Lima v. Village of Garden City, 131 A.D.3d 947 [2d Dept 2015]). The mere plowing of snow in accordance with a contract cannot be said to have created or exacerbated a dangerous condition (Fung v. Japan Airlines Co., Ltd., 9 N.Y.3d 351 [2007]; Espinal, supra at 142).
Mr. Brillante testified that he observed that the ice he slipped on near his car's driver's side door was "dirty" and was "lumpy" in texture. When asked what caused that lumpy ice condition, Mr. Brillante answered, "[l]umpy condition, freezing, warming, freezing, warming, I'm guessing. I'm not a -" When he was advised not to guess, Mr. Brillante continued, stating, "I don't know, I don't know about ice. You know, if s just not uniformed. What do they call it when they have the ice rink in the hockey, the come over with the . . . Zamboni, there's no Zamboni there." Plaintiffs do not offer any expert testimony relating the condition described by Michael Brillante to a thaw/refreeze process, and plaintiffs offer no photographic evidence of the area where Mr. Brillante fell as it appeared on March 5, 2015 (see Scott v. Avalonbay Communities, Inc., 125 A.D.3d 839 [2dDept 2015] [summary judgment granted to snow contractor where plaintiffs expert as to the origin of the dangerous condition was speculative and conclusory]). Furthermore, when asked at deposition if he knew how the snow accumulated near the handicapped parking sign got there, Mr. Brillante responded, "[m]y guess it was pushed there." Mr. Brillante admitted upon further questioning that he did not know how the snow got there.
Reliance upon Vogle v. North Country Property Management, LLC (170 A.D.3d 1491 [3d Dept 2019]) is misplaced because in that matter there were two witnesses who testified that they observed that snow would melt from the snowbanks, and the water would run onto the parking lot, where it would freeze when the temperature dropped. In the case at bar, there is no such testimony, nor any testimony remotely approaching the evidence presented in Vogle. Notably, there is no testimony from Mid Island's principal as to him observing any thawing and refreezing occurring in the parking lot, and 1245's contention that "snow could have melted further into the parking spot and then refreeze causing a dangerous ice condition" (emphasis added) is nothing more than speculation in the absence of any evidence in support of that contention.
According to Mid Island's principal (Bartoli), the last day that Mid Island was open for business as usual prior to plaintiffs accident was March 6, 2015. Mr. Bartoli testified that none of his patients complained to him regarding the condition of the parking lot, and he was not aware of anyone else who slipped and fell in the parking lot during the winter of 2015, prior to March 7, 2015. Mr. Bartoli did not speak to the landlord on March 6, 2015, and there was no time during the week preceding plaintiffs fall that he was unable to open Mid Island for business because the parking lot had not been cleared.
Plaintiffs' hearsay testimony about what Mr. Bartoli said to Michael Brillante when Mid Island rendered treatment to Brillante after the subject accident is admissible upon a summary judgment motion, but it is insufficient raise a question of fact since it is vague and speculative. Mr. Brillante admitted that he had one conversation with Mr. Bartoli, after the accident, but he could not recall how long after, and Mr. Brillante subsequently admitted that he did not recall if Mr. Bartoli told him that he made complaints to the landlord about the parking lot before or after the subject accident (see Stock v Otis Elevator Company, 52 A.D.3d 816 [2d Dept 2008]).
The Court notes that neither plaintiffs nor 1245 have submitted any evidence in contravention of the certified weather report that Empire annexed to its moving papers in anticipation of an argument that it launched an instrument of harm. The report reflects temperatures below freezing from the snowfall on March 5, 2015 through the time of the accident on March 7, 2015. Despite having been provided with this report in advance of submitting opposition papers, neither plaintiffs nor 1245 have even addressed the report.
Thus, it is this Court's determination that the plaintiffs have failed to raise a material triable issue of fact sufficient to defeat Empire's summary judgment motion. Empire's motion is granted, and the complaint as asserted against Empire is dismissed.
1245 also fails to address Empire's argument that there is no contractual indemnity or insurance requirement provision in the contract; accordingly, the cross-claims in this regard are dismissed. In view of the foregoing determination dismissing the complaint, 1245's cross-claims for common law indemnity and contribution are also dismissed.
The sole remaining defendant in this action is 1245 Middle Country Road, LLC.
The foregoing constitutes the Decision and Order of this Court.