Opinion
No. 10098/14.
10-02-2017
Eucebio R. CAZARES, Plaintiff, v. The CITY OF NEW YORK, The City of New York (Department of Parks & Recreation), The City of New York Department of Design and Construction, Volmar Construction Inc., D & B Cousins Construction Corp. and E–J Electrical Installation Company, Defendants. The City of New York, The City of New York (Department of Parks & Recreation) The City of New York Department of Design & Construction and Volmar Construction, Inc., Third–Party Plaintiffs, v. D & B Cousins Construction Corp. and E–J Electrical Installation Company, Third–Party Defendants.
The following papers numbered 1 to 40 read on these motions and cross motion by defendants seeking summary judgment dismissing plaintiff's and third-party plaintiff's complaints, pursuant to CPLR 3212.
Papers/Numbered
Notice of Motion–Affirmation–Exhibits 1–4
Answering Affirmations–Exhibits 5–13
Reply Affirmations–Exhibits 14–18
Notice of Cross Motion–Affirmation–Exhibits 19–21
Answering Affirmation–Exhibits 22–24
Reply Affirmations 25–30
Notice of Motion–Affirmation–Exhibits 31–35
Answering Affirmation 36–37
Reply Affirmation–Exhibit 38–40
Upon the foregoing papers, it is ordered that defendants' motions and cross motion are determined as follows:
Plaintiff seeks damages for personal injuries sustained when he was allegedly caused to trip and fall while walking on Perimeter Road, within Flushing Meadows Corona Park, near the main entrance to the Queens Museum of Art. Plaintiff alleges that he was caused to trip and fall due to the existence of a construction hole in the roadway thereat, covered by leaves and dirt, resulting in serious personal injuries. The City of New York (City) owned the property, and, at the time of the subject accident, i.e., October 2, 2013, was engaged in a renovation project to the Queens Museum and to the physical grounds and roadway near its entrance. Defendant, Volmar Construction, Inc. (Volmar) was the general contractor for such project. Volmar contracted with D & B Cousins Construction Corp. (D & B) to perform the concrete construction work for the museum project. City contracted with defendant, E–J Electrical Installation Company (E–J), to perform the electrical upgrade for the project, including the installation and relocation of some exterior street lights in the vicinity of the museum building.
Defendants, City, The City of New York Department of Parks and Recreation, The City of New York Department of Design & Construction (City Defendants), and Volmar move for, among other things, summary judgment; defendant, D & B, cross-moves for summary judgment; and defendant, E–J, moves for summary judgment, all seeking dismissal of plaintiff's complaint, on the ground that no triable issue of fact exists as to their liability for the accident, as said defendants assert they neither created the dangerous condition, nor did they have constructive notice of such condition in time to have corrected it prior to the accident.
"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" ( Ayotte v. Gervasio, 81 N.Y.2d 1062, 1063, 601 N.Y.S.2d 463, 619 N.E.2d 400, citing Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1986] ; see Schmitt v. Medford Kidney Center, 121 A.D.3d 1088 [2014] ; Zapata v. Buitriago, 107 A.D.3d 977 [2013] ). On defendants' motion for summary judgment, the evidence should be liberally construed in a light most favorable to the non-moving plaintiff (see Boulos v. Lerner–Harrington, 124 A.D.3d 709 [2015] ; Farrell v. Herzog, 123 A.D.3d 655 [2014] ). Credibility issues regarding the circumstances of the subject incident require resolution by the trier of fact (see Bravo v. Vargas, 113 A.D.3d 579 [2014] ; Martin v. Cartledge, 102 A.D.3d 841 [2013] ).
The court's function on a motion for summary judgment is "to determine whether material factual issues exist, not to resolve such issues" ( Lopez v. Beltre, 59 A.D.3d 683, 685 [2009] ; Santiago v. Joyce, 127 A.D.3d 954 [2015] ). As summary judgment is to be considered the procedural equivalent of a trial, "it must clearly appear that no material and triable issue of fact is presented.... This drastic remedy should not be granted where there is any doubt as to the existence of such issues ... or where the issue is ‘arguable’ [citations omitted] ( Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404 [1957] ; see also, Rotuba Extruders v.Ceppos, 46 N.Y.2d 223 [1978] ; Andre v. Pomeroy, 35 N.Y.2d 361 [1974] ; Stukas v. Streiter, 83 A.D.3d 18 [2011] ; Dykeman v. Heht, 52 A.D.3d 767 [2008] ). Summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" ( Collado v. Jiacono, 126 A.D.3d 927 [2014], citing Scott v. Long Is. Power Auth., 294 A.D.2d 348, 348 [2002] ; Bravo v. Vargas, 113 A.D.3d 579 [2014] ; Martin v. Cartledge, 102 A.D.3d 841 [2013] ). The burden is on the party moving for summary judgment to demonstrate the absence of a material issue of fact (see Ayotte v. Gervasio, 81 N.Y.2d 1062 [1993] ; Khadka v. American Home Mortg. Servicing, Inc., 139 AD3d 808 [2016]; Schmitt v. Medford Kidney Center, 121 A.D.3d 1088 [2014] ; Zapata v. Buitriago, 107 A.D.3d 977 [2013] ). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966 [1988] ; Winegrad v. New York Med. Ctr., 64 N.Y.2d 851 [1985] ).
The City and Volmar moved for summary judgment dismissing plaintiff's complaint against them. Volmar contends that it did not own the property, nor did it have a duty toward plaintiff-a non-contractual third-party-in the first instance. "A finding of negligence may be based only upon the breach of a duty. If, in connection with the acts complained of, the defendant owes no duty, the action must fall" ( Darby v. Compagnie Nat'l. Air France, 96 N.Y.2d 343, 347 [2001] ; see Federico v. Defoe Corp., 138 A.D.3d 682 [2016] ; Abrams v. Bute, 138 AD3d 179 [2016] ). The existence of a duty is a threshold question of law for the court to determine (see Espinal v. Melville Snow Contractors, 98 N.Y.2d 136 [2002] ).
While, generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third person (see Church v. Callanan Indus., 99 N.Y.2d 104 [2002] ; Rodriguez v. County of Westchester, 138 A.D.3d 713 [2016] ), a contractor may be liable to a third-party "where the contracting party, in failing to exercise reasonable care in the performance of his or her duties launches a force or instrument of harm" ( Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 ; see Somekh v. Valley Nat. Bank, 151 A.D.3d 783 [2017] ). Volmar, the general contractor on the project, concedes that, by the terms of its contract with City, it retained D & B to perform the concrete work on the pathways in the area. As such, Volmar's contention that it had no duty to plaintiff in this matter is without merit, as there exists a question of fact as to whether Volmar owed a duty of care to plaintiff, resulting from its contractual obligations to City, as, at a minimum, it had, and exercised, an obligation to inspect, the area of construction and sidewalk for defects. Viewing the evidence in a light most favorable to the non-moving plaintiff (see Boulos v. Lerner–Harrington, 124 A.D.3d 709 [2015] ; Farrell v. Herzog, 123 A.D.3d 655 [2014] ), Volmar has failed to establish its prima facie entitlement to judgment as a matter of law by proffering proof that eliminated all triable issues of fact as to whether its conduct caused or created the dangerous condition complained of by the plaintiff by failing to exercise reasonable care in the performance of its duties as general contractor, and the branch of its motion seeking to dismiss the complaint as against it, is denied (see Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986] ; Winegrad v. New York Univ. v. Medical Center, 64 N.Y.2d 851 [1985] ; Correa v. Matsias, –––A.D.3d ––––, 61 N.Y.S.3d 131, 2017 N.Y. Slip Op. 06520 [2d Dept.2017] ).
"Imposition of liability for a dangerous condition on property, must be predicated upon occupancy, ownership, control or special use of that premises" ( Velez v. Captain Luna's Marina, 74 A.D.3d 1191, 1192 [2010] ; see Sobel v. City of New York, 120 A.D.3d 485 [2014] ; LaGuarina v. Metropolitan Transit Authority, 109 A.D.3d 793 [2013] ). "An owner of property or tenant in possession of real property has a duty to maintain the property in a reasonably safe condition" ( Richardson v. Brooklake Associates, L.P., 131 A.D.3d 1153, 1154 [2015] ; see Chudinova v. Kleyner, 130 A.D.3d 859 [2015] ).
Defendant, City, the owner of the property, contends that plaintiff's complaint should be dismissed against it because it did not receive prior written notice of the alleged defect, pursuant to NYC Administrative Code § 7–201(c)(2), a condition precedent to commencing an action against City. While plaintiff has failed to rebut such lack of written notice, one of the exceptions to the written notice requirement is where "the municipality created the defect through an affirmative act of negligence" ( Puzhayeva v. City of New York, 151 A.D.3d 988 [2017] ; see Piazza v. Volpe, 153 A.D.3d 563 [2017] ; Wolin v. Town of N. Hempstead, 129 A.D.3d 833 [2015] ).
"Although the City generally may not be held liable for a defective condition on a municipal street or sidewalk unless it has received prior written notice, an exception to the prior written notice requirement applies where a municipality has created the defect through an affirmative act of negligence.... Here, in light of the ... determination that an issue of fact exists as to whether a contractor hired by the City created the subject ... there is also an issue of fact as to whether the City created the defect through its contractor's actions, and thus whether the affirmative negligence exception to the prior written notice rule applies" (internal citations omitted)( Tumminia v. Cruz Constr. Corp., 41 A.D.3d 585, 586 [2007] ; see Santelises v. Town of Huntington, 124 A.D.3d 863 [2015] ).
Consequently, City is not entitled to judgment as a matter of law, and the branch of its motion seeking to dismiss the complaint against it is denied.
Defendant, D & B, hired to install the concrete sidewalks, and defendant, E–J, hired to perform the electrical upgrade and install some street lights, also moved and cross-moved for summary judgment dismissing plaintiff's and third-party plaintiffs' complaints. As with City and Volmar, both D & B and E–J contend that they did not create the dangerous condition which allegedly existed at the time of plaintiff's accident, and, therefore, had no duty to plaintiff for his accident. However, the evidence that D & B was working in the area of plaintiff's accident at the time of said accident, and that E–J was installing street lights in and around said area, begs the question of whether either entity created the dangerous condition herein. Plaintiff's description of the hole in which he allegedly fell, his testimony that it had existed for a period of time before the accident, and the fact that both defendants were engaged in digging in the area, raises a triable issue of fact as to possible responsibility for the dangerous condition thereat, which is sufficient to warrant resolution by the trier of fact (see Mosquera v. Roach, 151 A.D.3d 1056 [2017] ; Pouncey v. New York City Trans. Auth., 135 A.D.3d 728 [2016] ; Sanchez v. Mapp, 127 A.D.3d 844 [2015] ).
As such, defendants D & B and E–J, have failed to tender sufficient evidence to demonstrate the absence of any material issue of fact and the right to judgment as a matter of law (see Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986] ; Winegrad v. New York Univ. v. Medical Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 ), and their motion and cross motion, seeking summary judgment dismissing the complaints as against each of them, are denied.
Third-party plaintiffs, City and Volmar, further move for summary judgment on their third-party claims against D & B and E–J for contractual indemnification and for failure to procure insurance. In opposition to the "lack of insurance" branch of the motion, both D & B and E–J have demonstrated that they possessed policies of insurance which facially complied with the insurance provisions of their sub-contract agreements, thereby warranting the denial of that branch of third-party plaintiffs' motion.
"The right to contractual indemnification depends upon the specific language of the contract" ( Dos Santos v. Power Auth. of State of NY, 85 A.D.3d 718, 722 [2011], quoting George v. Marshalls of MA, Inc., 61 A.D.3d 925, 930 [2009] ). "The promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances" ( Alayev v. Juster Assoc., LLC, 122 A.D.3d 886, 887 [2014] ; see Drzewinski v. Atlantic Scaffold & Ladder Co., 70 N.Y.2d 774 [1987] ; Lawson v. R & L Carriers, Inc., 126 A.D.3d 944 [2015] ). In the case at bar, the initial seven words of the indemnity clauses of the agreements between Volmar and D & B, and City and E–J, i.e., "To the fullest extent permitted by law," remove this matter from a violation of GOL 5–322.1, in that they do not require the contractors (D & B and E–J) to fully indemnify the owner or Volmar for their own negligence, but create a partial indemnification obligation on behalf of D & B and E–J (see Brooks v. Judlau Contr. Inc., 11 N.Y.3d 204 [2008Œ; Jardin v. A Very Special Place, Inc., 138 A.D.3d 927 [2016] ; Guryev v. Tomchinsky, 114 A.D.3d 723 [2014] ). Consequently, the subject indemnification agreements herein are enforceable
However, the party seeking contractual indemnification "must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor" ( Mohan v. Atlantic Court, LLC, 134 A.D.3d 1075 [2015], quoting Cava Constr. Co, Inc. v. Gealtec Remodeling Corp., 58 A.D.3d 660, 662 [2009] ; see Palomeque v. Capital Improvement Services, LLC, 145 AD3d 912 [2016]; Bleich v. Metropolitan Management, LLC, 132 A.D.3d 933 [2015] ). The same requirement would be necessary for common law indemnification (see Morris v. Home Depot USA, 152 A.D.3d 669 [2017] ; Chilinski v. LMJ Contracting, Inc., 137 A.D.3d 1185 [2016] ). On the evidence submitted herein, City and Volmar have failed to establish prima facie entitlement to judgment as a matter of law, as plaintiff's injury has not yet been shown to be attributable solely to D & B and/or E–J, and, therefore, the branch of their motion seeking contractual indemnification is denied as premature (see Seales v. Trident Structural Corp., 142 AD3d 1153 [2016]; Sawicki v. GameStop Corp., 106 A.D.3d 979, 966 N.Y.S.2d 447 ; Mikelatos v. Theofilaktidis, 105 A.D.3d 822 [2013] ; Arrendahl v.Trizechahn Corp., 98 A.D.3d 699 [2012] ; Bellefleur v. Newark Beth Israel Med. Ctr., 66 A.D.3d 807, 888 N.Y.S.2d 81 ).
Accordingly, defendants' motions and cross motion, all for, among other things, summary judgment, dismissing plaintiff's and third-party complaints, are denied.