Opinion
Index No. 29512/2019E Mot. Seq. No. 4
11-30-2023
IVELISSE DOTEL, Plaintiff, v. MOUNT HOPE PRESERVATION APARTMENTS 1A HOUSING DEVELOPMENT FUND COMPANY, INC. and MOUNT HOPE PRESERVATION APARTMENTS LLC, Defendants. MOUNT HOPE PRESERVATION APARTMENTS 1A HOUSING DEVELOPMENT FUND COMPANY, INC. and MOUNT HOPE PRESERVATION APARTMENTS LLC, Third-Party Plaintiffs v. NOTIAS CONSTRUCTION, INC., Third-Party Defendant.
Unpublished Opinion
DECISION & ORDER
HON. VERONICA G. HUMMEL, A.J.S.C.
In accordance with CPLR 2219(a), the decision herein is made upon consideration of all papers filed by the parties in NYSCEF in connection with third-party defendant NOTIAS CONSTRUCTION, INC.'s ("Notias") motion (Seq. No. 4) seeking an order, pursuant to CPLR 3212, granting it summary judgment dismissing the Third-Party Complaint and all crossclaims or counterclaims against Notias.
This is an action to recover damages for personal injuries allegedly arising from a slip-and-fall accident that occurred on April 16, 2019, on the steps between the lobby and first floor of the premises located at 1821 Davidson Avenue, Bronx, New York (the "Premises"). Plaintiff IVELISSE DOTAL ("Plaintiff") claims that her slip was caused by water on the stairs, and she further claims that a rolled-up carpet on the stairs also prevented her from holding onto the handrail.
Defendants/third-party plaintiffs MOUNT HOPE PRESERVATION APARTMENTS 1A HOUSING DEVELOPMENT FUND COMPANY, INC. and MOUNT HOPE PRESERVATION APARTMENTS LLC (together, "Mount Hope") own the Premises. Mount Hope contracted with Notias to perform certain construction work at the Premises.
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence sufficient to eliminate any material issues of fact from the case." Winegrad v. N.Y. Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). Upon such a showing, the burden then shifts to the nonmovant to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact." Mazurek v. Metro. Museum of Art, 27 A.D.3d 227, 228 (1st Dep't 2006).
When deciding a summary judgment motion, a court's role is solely to determine if any triable issues exist, not to determine the merits of any such issues. Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 (1957). In making this determination, the court must view the evidence in the light most favorable to the party opposing the motion, and it must give that party the benefit of every inference that can be drawn from the evidence. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d 470,475 (2013); Vega v. Restani Constr. Corp., 18 N.Y.3d 499 (2012). If there is any doubt as to the existence of a triable issue, summary judgment should be denied. Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231 (1978).
"It is axiomatic that before a defendant may be held liable for negligence it must be shown that the defendant owes a duty to the plaintiff.... In the absence of a duty, there is no breach and without a breach there is no liability." Chahales v. Westchester Joint Water Works, 47 A.D.3d 610,610 (2d Dep't 2008) (internal quotation marks and citations omitted). "The law imposes a duty to maintain property free and clear of dangerous or defective conditions only upon those who own, occupy, or control property, or who put the property to a special use or derive a special benefit from it." Id. (citations omitted).
"[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party." Stiver v. Good & Fair Carting & Moving, Inc., 9 N.Y.3d 253, 257 (2007) (quoting Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138 (2002)). The Court of Appeals has, however, identified three exceptions to this rule:
(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm; (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. (quoting Espinal, 98 N.Y.2d at 140).
Applying these principles here, Notias's motion for summary judgment is DENIED. As discussed below, the evidence submitted by Notias and Mount Hope, when viewed in light most favorable to Mount Hope, demonstrates that there are material questions of fact as to whether Notias was responsible for both the water and the rolled-up carpet on the stairs that allegedly caused and contributed, respectively, to Plaintiff's accident.
Initially, as to the rolled-up carpet, the submitted testimony establishes that Notias's work on the Premises began in April 2018 and continued to and beyond the date of the accident. The testimony also establishes that, during this time, Notias's employees and subcontractors would move equipment and materials up and down the stairs, and that when they did so, they would routinely place brown reinforced paper on the floor and secure it with blue painter's tape. If a carpet was in the area where the brown paper was being placed, the cited testimony establishes that Notias would move the carpet to the side. Plaintiff herself testified that the carpet that prevented her from using the handrail was rolled up and secured with blue tape. She further testified that construction was taking place in the Premises at the time "from the fifth floor to the first floor" and "[Notias] were removing everything[;] [t]hey had a mess." This evidence, when viewed in the light most favorable to Mount Hope, suggests the very real possibility that Notias's employees or subcontractors were responsible for creating the rolled-up carpet condition that allegedly contributed to Plaintiff's accident. Contrary to Notias's contention, this conclusion is not speculative; rather, there is specific testimony, as recounted herein, that directly supports the necessary inferences. Notias does not in any way challenge the testimony in their opposition papers by contending that Mount Hope either misquoted, misrepresented, or otherwise mischaracterized it.
Next, as to the water on the stairs, although Mount Hope's superintendent was admittedly typically responsible for mopping the Premises' stairs, the superintendent further testified as follows:
Q: How often would you mop the stairs, how would you determine how often to mop the stairs?
A: Well, in those - in that specific time, I do it like, on a Monday, on a Wednesday, or on a Friday. But since we were doing construction it was no sense for me to do anything really because they would cleaning [sic] after themselves, so I just focus on the building, make sure nothing is happening so everything is you know, any complaints comes in.
Q: So that I can understand, during the period of construction that was going on, the construction company would do cleaning on the stairs?
A: Yes, Yes.
Q: Did you ever observe them -
A: Yes.
Q: - do cleaning on the stairs?
A: Yes. They had their own cleaning crew, yes.
....
Q: At what point in time of the workday would you observe the cleaning crew mopping the stairs?
A: The time that they were working. The time that they were working. I mean, most of everyday when they were working, maybe every day. You know, they would constantly, like -sometimes it didn't needed [sic] to be mopped, it just needed to be swept.
Q: Okay.
A: Sometimes they - I seen them sweeping, most of it is sweeping, because the dust.
Additionally, Notias's own construction supervisor confirmed in his testimony that Notias's employees or subcontractors would clean the stairs after using them to convey equipment and materials between floors, including sometimes mopping the stairs if the conditions required it. Viewed in the light most favorable to Mount Hope, this evidence suggests that, during the time in question, only Notias's workers or subcontractors were mopping the Premises' stairs. The fact that the water was allegedly on the steps at the same time as the rolled-up carpet further lends credence to the possibility that both conditions were created by Notias while moving equipment and materials and cleaning up after.
In arguing that Notias's connection to the water and carpet is speculative, Notias's reliance on Velocci v. Stop & Shop, 188 A.D.3d 436 (1st Dep't 2020), Briggs v. Pick Quick Foods, Inc., 103 A.D.3d 526 (1st Dep't 2013), Marino v. Parish of Trinity Church, 67 A.D.3d 500 (1st Dep't 2009), and Catlyn v. Hotel & 33 Co., 230 A.D.2d 655 (2d Dep't 1996), is misplaced, as those cases are distinguishable on their facts and circumstances.
Further, Notias's argument that it cannot be held liable for Plaintiff's alleged injuries because Notias does not own the Premises is meritless. As previously stated, one exception to the general rule precluding a contracting party's liability for a third party's injuries caused by a dangerous condition on property is "where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm." Stiver, 9 N.Y.3d at 257. In Espinal, the Court of Appeals construed this exception to mean that "a defendant who undertakes to render services and then negligently creates or exacerbates a dangerous condition may be liable for any resulting injury." 98 N.Y.2d at 141-42. As discussed in more depth below, the Court rejects Notias's contention that the conditions in question, if created by Notias, were not created while Notias's employees were performing work within the scope of Notias's contract with Mount Hope. And Notias has not argued-nor could it-that it was not reasonably foreseeable that the allegedly dangerous conditions in question could lead to an accident like the one claimed by Plaintiff.
Equally lacking in merit is Notias's contention that Mount Hope's claims for contractual indemnity should be dismissed because the accident did not arise out of the performance of work pursuant to the contract between Notias and Mount Hope. Notias advances an unsustainably narrow interpretation of the contract language, suggesting that because the contract called for Notias to perform specific renovation work to the stairs and Notias had not yet commenced that specific work to the stairs at the time of the accident, the accident could not have arisen out of the work contracted for the stairs. But if it proves the case that Notias's employees or subcontractors created the dangerous conditions in question while conveying equipment and materials on the stairs in connection with performing contracted work in other parts of the Premises, as alleged here, then the accident would have arisen out of contracted work. The putting down of brown reinforced paper on and cleaning of the stairs, neither of which Notias denies doing, is clearly part and parcel of and connected to the construction work performed on the other areas of the Premises.
Notias's reliance on DeGidio v. City of New York, 176 A.D.3d 452 (1st Dep't 2019), and Keita v. City of New York, 129 A.D.3d 409 (1st Dep't 2015), is misplaced, because, again, those cases are distinguishable on their facts and circumstances. Indeed, the First Department in Keita appears to suggest that the contractual indemnification claims in that case may not have been dismissed if it had been shown that the defective condition was merely "connected to" the contracted work. See 129 A.D.3d at 410 ("The motion court correctly dismissed defendants/third-party plaintiffs' claim for contractual indemnification since plaintiff's accident did not arise out of, nor was it connected to, the security work identified in defendant Parking Systems Plus, Inc.'s contract.") Here, it cannot be plausibly argued that the protective and cleaning measures that Notias took in the stairs while performing contracted work in other areas of the Premises was not connected to that contracted work.
Finally, Notias alleged lack of notice of the dangerous conditions is irrelevant because the evidence suggests that Notias may have affirmatively created them, not that Notias was a property owner who was on notice of the conditions. See Friedman v. 1753 Realty Co., 117 A.D.3d 781, 783 (2d Dep't 2014) ("[I]n a premises liability case, a defendant... who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the defective condition nor had actual or constructive notice of its existence."). Of note, Mount Hope argues that there is a question of fact as to how the water accumulated on the stairs.
The Court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by the parties was not addressed by the Court, it is hereby denied.
Accordingly, it is hereby:
ORDERED that third-party defendant NOTIAS CONSTRUCTION, INC.'s ("Notias") motion (Seq. No. 4) seeking an order, pursuant to CPLR 3212, granting it summary judgment dismissing the Third-Party Complaint and all crossclaims or counterclaims against Notias is DENIED; and it is further
ORDERED that the Clerk shall mark the motion (Seq. No. 4) decided in all court records; and it is further
This constitutes the Decision and Order of the Court.