Opinion
105587/06.
Decided April 19, 2010.
Michael J. Altman, Esq., Trollman, Glaser Lichtman, P.C., New York, New York, for plaintiff.
Lynn M. Leopold, Esq., City of New York Law Department, Manhattan Trial Unit, Tort Division, New York, New York, for defendant City.
Robert J. Fumo, Esq., Law Office of James J. Toomey, New York, New York, for defendant C.A. Bros.
Paul F. LaGattuta III, Esq, Fixler LaGattuta, LLP, New York, New York, for defendants Kips Bay.
John F. Gillespie, Esq., Ahmuty, Demers McManus, Esqs., Albertson, New York, for defendant Tor.
By notice of motion, dated November 30, 2009, defendant Tishon Contracting Co., Inc. d/b/a Tor Contracting (Tor) moves for an order summarily dismissing all claims against it. Plaintiff and co-defendant C.A. Bros. Contracting Corp. (C.A. Bros.) oppose. By notice of motion, dated December 15, 2009, C.A. Bros. moves for an order summarily dismissing all claims against it, or, in the alternative, an order granting summary judgment on its common law indemnification claims against Tor. Plaintiff, Tor, co-defendants The Kips Bay Towers Condominium and The Condominium Board of the Kips Bay Tower Condominium, Inc. (collectively, Kips Bay), and co-defendant City of New York (City) oppose that portion of C.A. Bros.'s motion requesting summary dismissal. Tor also opposes that portion of C.A. Bros.'s motion seeking common law indemnification. By notice of cross-motion, dated January 26, 2010, Kips Bay moves for an order granting summary judgment on its contractual indemnification claim against C.A. Bros. C.A. Bros. opposes. By notice of cross-motion, dated February 11, 2010, City moves for an order summarily dismissing all claims and cross-claims against it. Kips Bay, C.A. Bros., and plaintiff oppose.
I. UNDISPUTED FACTUAL BACKGROUND
In May 2005, defendant building owner The Kips Bay Towers Condominium contracted with C.A. Bros. to install a new sidewalk at the southeast corner of 33rd Street and Second Avenue, in front of 300 East 33rd Street based on plans forwarded to it by its architect. (Affirmation in Support of Cross-Motion of Paul F. LaGattuta III, Esq., dated Jan. 26, 2010 [Jan. 26 LaGattuta Aff.], Exh. A]; Affirmation of Michael T. Altman, Esq., dated Feb. 17, 2010 [Feb. 17 Altman Aff.]). In June 2005, C.A. Bros. entered into a contract with Tor by which Tor agreed to provide all labor and "to complete work in a professional and timely manner and in accordance with all applicable codes." (Affirmation of John F. Gillespie, Esq., dated Nov. 30,2009 [Nov. 30 Gillespie Aff.], Exh. L; Feb. 17 Altman Aff.). C.A. Bros. provided Tor with the plans. ( Id.).
Tor took two to three months to complete the work. ( Id.). C.A. Bros.'s representative then inspected the work and signed a certificate of substantial completion which Kips Bay's architect also signed. (Affirmation of Robert P. Fumo, Esq., dated Dec. 15, 1999 [Dec. 15 Fumo Aff.], Exh. G at 41-42; Feb. 17 Altman Aff.). The representative took no measurements of the newly installed sidewalk or of the catch basin in the street. (Feb. 17 Altman Aff.; Dec. 15 Fumo Aff., Exh. G at 48-49).
On January 4, 2006, at approximately 9:30 a.m., plaintiff slipped and fell on an icy pedestrian ramp at the site of the new sidewalk. (Feb. 17 Altman Aff.). The ramp had a midsection where most people walk, and two narrower side sections. (Nov. 30 Gillespie Aff., Exh. F at 22). As plaintiff walked towards the midsection, she noticed frozen water or black ice extending approximately one and a half feet into the roadway. In order to avoid it, she walked onto the narrower section to her right, only to slip and fall on ice. ( Id. at 21-23, 27).
II. PERTINENT PROCEDURAL BACKGROUND
On April 26, 2006, plaintiff served City with a summons and complaint (Dec. 15 Fumo Aff., Exh. A), and on August 11, 2006, an amended summons and complaint (Nov. 30 Gillespie Aff., Exh. C), alleging that the ice at the pedestrian ramp formed as a result of a "ponding condition," whereby water accumulated because the catch basin in the street did not adequately catch rain and snow. (Feb. 17 Altman Aff.).
On November 13, 2006, C.A. Bros. commenced a third-party action against Tor seeking indemnification. (Dec. 15 Fumo Aff., Exh. B). On January 10, 2007, another justice of this court granted plaintiff's motion for leave to amend the complaint to include Tor (Affirmation of Paul F. LaGattuta III, Esq., dated Dec. 17, 2009 [Dec. 17 LaGattuta Aff.], Exh. A]), and on January 31, 2007, plaintiff served a second supplemental summons and second amended verified complaint adding Tor as a defendant ( id., Exh. B), and on February 20, 2007, C.A. Bros. served an answer to the second amended verified complaint ( id., Exh. D). On March 2, 2007, City served an answer to plaintiff's second amended summons and complaint. (Affirmation of Lynn M. Leopold, Esq., dated Feb. 11, 2010 [Leopold Aff.], Exh. C). On March 19, 2007, Kips Bay served a verified answer to plaintiff's second amended verified complaint, adding cross-claims against all co-defendants. ( Id., Exh. C). On April 18, 2007, Tor served an answer to the second amended verified complaint, with cross-complaints against the other defendants. (Nov. 30 Gillespie Aff., Exh. D). On April 20, 2007, Tor served an answer to C.A. Bros.'s cross-claim. ( Id., Exh. B).
On August, 10, 2007, Kips Bay superintendent Jose Rosario testified at a deposition that he did not recall receiving any complaints about the sidewalk between 2004 and 2006. (Dec. 17 LaGattuta Aff., Exh. I at 30). The same day, C.A. Bros.'s vice-president Nicola Chiarizia testified at a deposition as follows: He visited the location regularly while the work was being performed, and after it was finished, found that it was satisfactorily completed. ( Id., Exh. K at 29-30, 48). Tor had to "break up the sidewalk, put in a new sidewalk and . . . put in a new steel edge to the curb and . . . break up some of the street area alongside the edge of the curb and then repair it." ( Id. at 58). After the work was completed, the curb line in the street and the pedestrian ramp sloped at the same angle as they did before Tor began the work. ( Id. at 72). At no time did Chiarizia notice any pooling or ponding of water at the corner. ( Id. at 52-53).
On December 5, 2007, Tor's owner Peter Anthony O'Reilly testified at a deposition as follows: Tor obtained the plans and specifications prepared by Kips Bay's architect. ( Id., Exh. I at 16-17, 24). The curb corner and sidewalk were broken and needed to be replaced, and while that work was being performed, O'Reilly noticed no flooding. ( Id. at 29, 35). Tor did no work on or around the catch basin; rather, it restored the sidewalk to its original condition. ( Id. at 38, 47, 49).
On January 10, 2008, Kips Bay porter Richard Colon testified at a deposition as follows: He could recall no work on the sidewalk adjacent to the building, and believed that the ramp did not change in appearance over his ten-year tenure with Kips Bay. (Dec. 17 LaGattuta Aff., Exh. J at 29-33). He was aware that ice accumulated around the ramp, and occasionally applied salt to melt it. ( Id. at 24). He also noticed water accumulate in the area when it rained and tried to push it into the sewer once or twice, but never attempted to correct the condition because he believed that the street was not his responsibility. ( Id. at 38).
On September 17, 2008, plaintiff served the other parties with the report of its expert, who determined that, due to the reconstruction, the ponding condition resulted from either a maladjustment of the catch basin, or the post-repair re-surfacing of the roadway at the wrong slope. (Feb. 17 Altman Aff., Exh. A).
III. CITY'S MOTION TO DISMISS A. Contentions
City argues that it cannot be held liable for plaintiff's accident because it did not receive prior written notice as required by New York City Administrative Code § 7-201(c), it did not cause or create a dangerous condition, and it is immune from liability. (Leopold Aff.). In support, it annexes the deposition of Department of Transportation records searcher Stacey Williams, who searched for records of permits issued for the subject area two years before the accident, and found only one permit issued to the Department of Environmental Protection (DEP), which was to repair a water hydrant gate box. (Leopold Aff., Exh. H at 12-13). It also submits the deposition testimony of Department of Transportation records searcher Leslie Smalls, who conducted a block or segment search for the two-year period preceding the accident, and found only two permits for the subject location and no notices of violations or corrective action reports (Leopold Aff. Exh. J at 18-23), and DEP's Bruce Robinson, who searched for water and sewer records and found no complaints or maintenance records for the subject area (Dec. 17 LaGattuta Aff., Exh. M).
Plaintiff does not contest City's denial of notice of a dangerous condition, but argues that City caused or created it by failing to fulfill its duty to inspect the repair work, and that City has not met its burden because it does not challenge plaintiff's expert report. (Affirmation of Michael T. Altman, Esq., dated March 5, 2010 [March 5 Altman Aff.]). In support, plaintiff attaches the report of its expert who indicates that City was negligent in inspecting the repair work, and sets forth violations of City Specifications. ( Id., Exh. B).
B. Analysis
Pursuant to New York City Administrative Code § 7-201(c), an action against the City for damage to the street cannot be maintained unless "written notice of the defective, unsafe, dangerous, or obstructed condition, was actually given to the commissioner of transportation or any person or department authorized by the commissioner to receive such notice." Where the City has caused or created the defect through an affirmative act of negligence, notice need not be shown. ( Amabile v City of Buffalo, 93 NY2d 471, 474; see Yarborough v City of New York , 10 NY3d 726 , 728 [applying exception to § 7-201(c)]; Kiernan v Thompson, 73 NY2d 840, 841-842 [as City created crack in sidewalk, plaintiff not required to prove prior written notice of unsafe condition]; Gabriele v Edgewater Park Owners Co-op. Corp. , 67 AD3d 484 [1st Dept 2009]).
A municipality has no duty to inspect work performed by a third party in its streets unless the "condition is apparent and the danger obvious." ( De Witt Properties, Inc. v City of New York, 44 NY2d 417, 425); see also Gillette Shoe Co. v City of New York, 58 NY2d 853, 855-56 [no duty to inspect utility's activities unless they can be considered dangerous]). Even when a duty arises by statute or regulation, a municipality cannot be held liable for a third party's injuries, absent a special relationship between the injured person and the municipality. ( O'Connor v City of New York, 58 NY2d 184, 190; Sanchez v Village of Liberty, 42 NY2d 876, 877-78).Thus, notwithstanding plaintiff's expert's determination that City negligently inspected the site, that claim is not cognizable absent a duty. ( Gillette Shoe Co., 58 NY2d at 855-56). Absent any evidence that the work was dangerous, there is no duty to inspect. ( See Colon v City of New York , 29 AD3d 724 725 [2d Dept 2006] ["City had no duty to inspect the repaving work, as repaving is not an imminently dangerous activity"]).
Consequently, there is no theory under which City can be held liable here, and I need not address City's claims against co-defendants for common-law indemnification.
IV. KIPS BAY'S MOTION TO DISMISS A. Contentions
Kips Bay denies responsibility for the area where plaintiff fell because the pedestrian ramp is not part of the sidewalk, and asserts that it cannot be held liable for the negligent acts of its independent contractors, that there is no evidence that it directed, controlled, or supervised the subject work, and that its awareness of a general condition does not constitute sufficient evidence of constructive notice of the condition. (Dec. 17 LaGattuta Aff.). In support, it relies on Rosario's testimony that he did not recall receiving complaints about the sidewalk between 2004 and 2006 ( id., Exh. I at 30), Colon's testimony that the area looked the same throughout the ten-year period of his tenure and that water would occasionally accumulate in the area ( id., Exh. H), and O'Reilly's and Chiarizia's testimony ( id., Exhs. I, K).
Plaintiff alleges that as Kips Bay's architect drafted the plans for the reconstruction, inspected the area, and had notice of the dangerous freezing and ponding condition, there exists a triable issue of fact as to Kips Bay's liability. (Feb. 17 Altman Aff.). In support, it annexes its expert report ( id., Exh. A), and Colon's deposition (Dec. 17 LaGattuta Aff., Exh. J).
B. Analysis
Generally, an owner is not liable for the negligent acts of its contractor ( Berg v Parsons, 156 NY 109, 112-113 [1898]), unless the work is inherently dangerous, or the owner interferes with and assumes control over the work ( Bala v Target Corp. , 63 AD3d 518 [1st Dept 2009]; Fisher v Battery Bldg. Maintenance Co., 135 AD2d 378, 379 [1st Dept 1987]). General supervisory authority is insufficient to demonstrate that the owner assumed control over the work. ( Goodwin v Comcast Corp. , 42 AD3d 322 , 323 [1st Dept 2007]; Laecca v New York Univ. , 7 AD3d 415 , 416 [1st Dept 2004]).
That Kips Bay's architect drew up the plans for the reconstruction and inspected the area does not constitute supervisory authority. ( Cf Haefeli v Woodrich Engineering Co., Inc., 255 NY 442, 450 [1931] [building owner who entrusts planning to architect and construction to contractor is not liable for injuries sustained when building collapsed due to faulty design or construction where owner took no part in supervising construction and was unaware that structure inherently dangerous]). Moreover, Kips Bay cannot be held liable by virtue of its status as an abutting landowner, as the landowner's liability for a sidewalk does not extend to pedestrian ramps. (Admin. Code § 7-210; Ortiz v City of New York , 67 AD3d 21 , 28 [1st Dept 2009], revd on other grounds, NY3d, 2010 Slip Op 02439 [2010]).
V. KIPS BAY'S MOTION FOR CONTRACTUAL INDEMNIFICATION A. Contentions
Kips Bay contends that it is entitled to indemnification from C.A. Bros. based on section 8.13.1 of the parties' contract, which provides that:
To the fullest extent permitted by law and to the extent claims, damages, losses or expenses are not covered by Project Management Protective Liability insurance purchased by [C.A. Bros.]. . . . [C.A. Bros.] shall indemnify and hold harmless [Kips Bay] . . . from any claims, damages, losses, and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work, provided that such claim, damage or loss or expense is attributable to bodily injury . . . but only to the extent caused by the negligent acts or omissions of [C.A. Bros.] . . . or anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such, claim, damage, loss or expense is caused in part by a party indemnified hereunder.
(Jan. 26 LaGattuta Aff., Exh. A).
C.A. Bros. denies any obligation to indemnify Kips Bay given Kips Bay's negligence in maintaining the corner and pedestrian ramp, its architect's inspection and approval of the work, and Tor's completion of the work before plaintiff's accident. (Affirmation of Robert P. Fumo in Opposition to Kips Bay's Motion for Summary judgment, dated Feb. 19, 2009 [Feb. 19 Fumo Aff.]. It also argues that pursuant to General Obligations Law (GOL) § 5-322.1(1), the contractual indemnification provision is unenforceable. ( Id.).
B. Analysis
A contractual provision purporting to indemnify a party for its own negligence is unenforceable. (GOL § 5-322.1). However, such a provision is enforceable "in the event the indemnitee is found not negligent but nevertheless held vicariously liable to the plaintiff. . ." ( Linarello v City Univ. of NY , 6 AD3d 192 , 194 [1st Dept 2004]).
Although the indemnification provision in issue requires C.A. Bros. to indemnify Kips Bay where the injury is "caused in part" by it, it also restricts it to the extent permitted by law,
thereby rendering the provision enforceable ( see Giangarra v Pav-Lak Contracting, Inc. , 55 AD3d 869 [2d Dept 2008] [agreement not void as it also authorized indemnification "to the fullest extent permitted by law"]). And, absent evidence that Kips Bay was negligent ( see supra, IV.B.), the clause is enforceable ( see Linarello, 6 AD3d at 194), and there is no basis for relieving C.A. Bros. from its obligation to indemnify Kips Bay.
VI. C.A. BROS.'S MOTION FOR SUMMARY JUDGMENT A. Contentions
C.A. Bros. argues that it cannot be held liable because it neither owned nor operated the subject location, had no duty or responsibility to maintain it, and did not perform the work, which was contracted to Tor. (Dec. 15 Fumo Aff.). It also asserts that because it returned the sidewalk and pedestrian ramp to their exact pre-repair conditions, it could not have been responsible for the ponding condition and, having performed the work according to Kips Bay's specifications, any flaws in the sidewalk repair are attributable to Tor's negligence. It thus maintains that it is entitled to common law indemnity from Tor. ( Id.). In support, it attaches the certificate of substantial completion and O'Reilly's deposition in which he testified that Tor performed all the work. ( Id., Exhs. K, H).
Tor denies the existence of any evidence that it negligently performed the work, asserting that it performed it according to the plans provided by C.A. Bros., and that C.A. Bros. inspected the work and found it satisfactory, as evidenced by its execution of the certificate of substantial completion. (Affirmation of John F. Gillespie, Esq. in Opposition to C.A. Bros.'s Motion, dated Jan. 15, 2010 [Jan. 15 Gillespie Aff.]). In support, it attaches the deposition of Chiarizia who testified that C.A. Bros. provided Tor with the plans. (Dec. 15 Fumo Aff., Exh. G).
Plaintiff alleges that C.A. Bros.'s own representative inspected and approved the work, that C.A. Bros. cannot verify that the sidewalk sloped at the same angle post-repair because it did not measure it before or after the repair, and that C.A. Bros. does not challenge plaintiff's expert's conclusion that a deficient inspection was a cause of plaintiff's injuries. (Feb. 17 Altman Aff.). In support, it submits plaintiff's expert's report ( id., Exh. A), and Chiarizia's deposition in which he conceded that C.A. Bros. did not measure the area before or after the installation. (Dec. 15 Fumo Aff., Exh. G, 48-49).
B. Analysis
To the extent that C.A. Bros. has established, prima facie, that it is not liable here, plaintiff's expert's opinion that the ponding condition resulted from C.A. Bros.'s faulty inspection raises a factual issue as to whether C.A. Bros. was negligent and whether such negligence contributed to plaintiff's injuries. In reply, C.A. Bros. offers no evidence in support of its officer's self-serving, non-expert conclusion that the sidewalk was the same after the repair as it was before the repair, and their agreement does not manifest a clear intention to shift all liability from C.A. Bros. to Tor. Accordingly, triable issues of fact exist which preclude summary dismissal of the claims against C.A. Bros., and as C.A. Bros.'s liability may derive from its own negligence, and not merely by virtue of vicarious liability or statute ( see Correia v Professional Data Mgt., Inc., 259 AD2d 60, 64 [1st Dept 1999]), C.A. Bros. has not established, prima facie, that it is entitled to common law indemnification.
VII. TOR'S MOTION FOR SUMMARY DISMISSAL AND FOR SUMMARY JUDGMENT ON C.A. BROS.'S CROSS-CLAIM FOR INDEMNIFICATION
A. Contentions
Tor denies having breached a duty owed to plaintiff, claiming, relying on Luby v Rotterdam Sq., LP , 47 AD3d 1053 (3d Dept 2008), that it performed the work according to the plans and specifications provided to it and, relying on Greenstein v Realife Land Improvement, Inc. , 13 AD3d 338 (2d Dept 2004) that having finished the work well before plaintiff's accident, it is relieved of liability. It observes that water had accumulated at the location before it ever worked there, that it restored the sidewalk to the condition it was in before the reconstruction, and that plaintiff's expert's report contains no indication that it was negligent. (Gillespie Aff.).
Tor also claims entitlement to summary judgment on C.A. Bros.'s cross-claim for indemnification on the grounds that the contract does not provide for indemnification and that it performed the work pursuant to C.A. Bros.'s instructions. ( Id.).
In opposition, C.A. Bros. maintains that Tor performed all of the work and denies having provided it with any labor or equipment. It claims entitlement to common law indemnification from Tor if the accident is found to have resulted from Tor's negligence. (Affirmation of Robert P. Fumo in Partial Opposition to Tor's Motion for Summary Judgment, dated Feb. 10, 2010).
Plaintiff asserts that there is "ample evidence" that Tor negligently performed the work, and observes that Tor does not challenge its expert's report that the injuries were caused by a ponding condition resulting from the negligent reconstruction of the area. (Feb. 17 Altman Aff.).
B. Analysis
Although Tor sets forth, prima facie, its entitlement to a dismissal, plaintiff's expert's opinion that the ponding condition resulted from the reconstruction work performed by Torraises an issue of fact as to whether the replacement sidewalk was negligently installed.
In Luby, 47 AD3d 1053, the plaintiff sought to impute to the defendant a duty of care based on the defendant's breach of a contract with a third party. The court, relying on Espinal v Melville Snow Contractors, Inc., 98 NY2d 136 (2002), dismissed the action. In Espinal, the plaintiff slipped on ice and alleged that the defendant, who contracted with a property owner to remove snow, was negligent. ( Id. at 138). The court held that the snow removal company's contractual obligation to the property owner did not create a duty of care to a third party, unless the "putative wrongdoer has . . . launched a force or instrument of harm" ( id. at 139), explaining that "launch[ing] an instrument of harm" is the equivalent of "creat[ing] or exacerbat[ing] a condition" ( id. at 142-143). Here, however, plaintiff's claim is not based on Tor's breach of a contractual obligation to C.A. Bros., but on an allegation that it actively created the ponding condition by negligently reinstalling the portion of the sidewalk in such a manner that water would not drain into the catch basin. Consequently, its reliance on Luby is misplaced.
Tor's reliance on Greenstein, 13 AD3d 338, is also misplaced. There, the plaintiff slipped and fell on a piece of wire mesh on a sidewalk nearby ongoing construction work. Having completed its work at the site one month earlier, the concrete subcontractor was relieved of liability for the presence of the piece of wire mesh. Here, plaintiff's claim is based on an expert's opinion that the dangerous condition resulted from reconstruction work concededly conducted by Tor. Consequently, Tor's completion of its work well before the accident is immaterial given plaintiff's theory of negligent construction which does not require proof that the negligent party was still at work on the site at the time of plaintiff's accident.
Although there are triable issues of fact as to Tor's liability, given the issues of fact as to C.A. Bros.'s own liability ( see supra, VI.B.), a determination of Tor's indemnification of C.A. Bros. must await trial.
VIII. CONCLUSION
Accordingly, it is hereby
ORDERED, that City of New York's motion for an order summarily dismissing the action against it is granted, and all claims and cross-claims against City are dismissed; it is further
ORDERED, that Kips Bay's motion for an order summarily dismissing the action against it is granted, as is its motion for contractual indemnification for expenses not covered by Project Management Protective Liability insurance purchased by C.A. Bros. including but not limited to attorneys' fees arising out of or resulting from performance of the Work, provided that such expense is attributable to bodily injury, and all claims and cross-claims against the Kips Bay defendants are dismissed; it is further
ORDERED, that defendant C.A. Bros.'s motion for an order summarily dismissing the action against it is denied, as is its motion for common-law indemnification from Tor; it is further
ORDERED, that defendant Tor's motion for an order summarily dismissing the action against it is denied, and its motion for summary dismissal of C.A. Bros.'s cross-claim for indemnification is denied; it is further
ORDERED, that the remainder of the action shall continue; and it is further
ORDERED, that the Trial Support Office reassign this case to a non-City part and remove it from the Part 5 inventory. Plaintiffs shall serve a copy of this order on all other parties and on the Trial Support Office, 60 Centre Street, Room 158. Any compliance conferences currently scheduled are hereby cancelled.
This constitutes the decision and order of the court.