Opinion
2014-03-25
Kathleen DeCANIO, et al., Plaintiffs–Appellants, v. PRINCIPAL BUILDING SERVICES INC., et al., Defendants–Respondents.
Kenneth J. Gorman, P.C., New York (Kenneth J. Gorman of counsel), for appellants. Marshall Dennehey Warner Coleman & Goggin, P.C., New York (John K. McElligott of counsel), for Principal Building Services Inc., respondent.
Kenneth J. Gorman, P.C., New York (Kenneth J. Gorman of counsel), for appellants.Marshall Dennehey Warner Coleman & Goggin, P.C., New York (John K. McElligott of counsel), for Principal Building Services Inc., respondent.
Law Office of James J. Toomey, New York (Evy L. Kazansky of counsel), for City and County Paving, respondent.
, P.J., MAZZARELLI, RENWICK, FEINMAN, GISCHE, JJ.
Orders, Supreme Court, New York County (Richard F. Braun, J.), entered August 17, 2012, which granted defendants' motions for summary judgment dismissing the complaint, unanimously modified, on the law, the motion denied as to defendant Principal Building Services Inc. (PBS), and otherwise affirmed, without costs.
The court properly granted the summary-judgment motion of defendant snow-removal subcontractor City and County Paving Corp. (CCPC). CCPC's snow-removal contract with defendant property manager PBS, standing alone, is insufficient to “trigger a duty of care running” to plaintiff ( Fung v. Japan Airlines Co., Ltd., 9 N.Y.3d 351, 360, 850 N.Y.S.2d 359, 880 N.E.2d 845 [2007] ). Further, CCPC's acts of plowing and salting the employee parking lot where plaintiff allegedly slipped and fell, as required by its contract with PBS, cannot be said to have “created or exacerbated a dangerous condition” ( id. at 361, 850 N.Y.S.2d 359, 880 N.E.2d 845 [internal quotation marks omitted] ). In addition, the record shows that CCPC did not completely absorb the landowner's duty to maintain the premises safely. Indeed, the snow-removal contract between PBS and CCPC obligated CCPC to plow only after two inches of snow or more fell, or after PBS asked it to do so, and it did not require snow or ice removal in the area where plaintiff fell ( id.; see also Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 141, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ). Nor may plaintiff assert that she detrimentally relied upon PBS's or CCPC's continued performance of snow-removal services, as she did not set forth that allegation in the pleadings ( see Gartmann v. City of New York, 67 A.D.3d 468, 468–469, 890 N.Y.S.2d 5 [1st Dept.2009] ).
A question of fact, however, exists as to whether PBS's contractual responsibility to maintain the entire facility displaced the landowner's duty to maintain the property in a reasonably safe condition ( see Tamhane v. Citibank, N.A., 61 A.D.3d 571, 572–573, 877 N.Y.S.2d 78 [1st Dept.2009] ). Indeed, PBS's property manager testified that PBS was responsible for the maintenance of the entire premises, including the parking lot where plaintiff fell ( see Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 588–589, 611 N.Y.S.2d 817, 634 N.E.2d 189 [1994] ).
In addition, PBS failed to make a prima facie showing that it lacked constructive notice of the ice in the employee parking lot. Indeed, it submitted no evidence refuting plaintiff's contention that the ice that allegedly caused her to fall existed at the accident location for approximately two days before the incident ( see Penn v. 57–63 Wadsworth Terrace Holding, LLC, 112 A.D.3d 426, 975 N.Y.S.2d 668 [1st Dept.2013] ). The property manager's deposition is not probative as to whether PBS lacked actual or constructive notice of the ice in the employee parking lot, as he had no personal knowledge of the condition of the lot at the time of the incident or in the hours immediately preceding it ( Lebron v. Napa Realty Corp., 65 A.D.3d 436, 437, 884 N.Y.S.2d 37 [1st Dept.2009] ). Further, his testimony as to which employees he would rely upon to notify him about ice and other conditions at the premises is insufficient to satisfy PBS's burden of establishing that it lacked notice of the complained-of condition prior to the accident ( see Mike v. 91 Payson Owners Corp., 114 A.D.3d 420, 979 N.Y.S.2d 332 [1st Dept.2014];Lebron, 65 A.D.3d at 437, 884 N.Y.S.2d 37).