Opinion
Index No. 156426/2017
08-31-2022
Roxanne Ellis, Plaintiff, v. JPMorgan Chase Bank, National Association, JPMORGAN CHASE & CO., 383 MADISON, LLC, JONES LANG LASALLE AMERICAS, INC., ABM INDUSTRIES, INC., ABM FACILITY SERVICES COMPANY, ABM JANITORIAL SERVICES-NORTHEAST, INC., Defendants. JONES LANG LASALLE AMERICAS, INC., Plaintiff, v. EMPIRE OFFICE, INC., Defendant.
Reingold & Tucker, Brooklyn, NY (Jordan W. Tucker of counsel), for plaintiff. Stagg Wabnik Law Group LLP, Garden City, NY (Thomas E. Stagg and Carlo Sciara of counsel), for defendants JPMorgan Chase Bank National Association, JPMorgan Chase & Co., and 383 Madison LLC. Sobel Pevzner, LLC, Huntington, NY (Judy R. Meisel of counsel), for defendant Jones Lang Lasalle Americas, Inc. Gallo Vitucci Klar LLP, New York, NY (Jessica A. Clark of counsel), for the ABM defendants. Lewis Brisbois Bisgaard & Smith, LLP, New York, NY (James M. Strauss of counsel), for third-party defendant Empire Office, Inc.
Unpublished Opinion
Reingold & Tucker, Brooklyn, NY (Jordan W. Tucker of counsel), for plaintiff.
Stagg Wabnik Law Group LLP, Garden City, NY (Thomas E. Stagg and Carlo Sciara of counsel), for defendants JPMorgan Chase Bank National Association, JPMorgan Chase & Co., and 383 Madison LLC.
Sobel Pevzner, LLC, Huntington, NY (Judy R. Meisel of counsel), for defendant Jones Lang Lasalle Americas, Inc.
Gallo Vitucci Klar LLP, New York, NY (Jessica A. Clark of counsel), for the ABM defendants.
Lewis Brisbois Bisgaard & Smith, LLP, New York, NY (James M. Strauss of counsel), for third-party defendant Empire Office, Inc.
Gerald Lebovits, J.
Plaintiff in this personal-injury action, Roxanne Ellis, was formerly a delivery driver for a nonparty. She was injured while attempting to make a delivery of dry goods to offices of defendant JP Morgan Chase Bank, N.A. (Chase), located at 383 Madison Avenue in Manhattan.
Ellis's original complaint asserted damages claims against Chase and against the building owner, defendant 383 Madison, LLC. In February 2019, this court granted Ellis a trial preference on the ground that the injuries for which she now seeks damages had rendered her unable to work and indigent. In September 2019, this court denied Chase and 383 Madison's motion for summary judgment and set the matter down for trial. (See Ellis v JPMorgan Chase Bank, Natl. Ass'n, 2019 NY Slip Op 32796[U] [Sup Ct, NY County Sept. 23, 2019], affd 190 A.D.3d 413 [1st Dept 2021].)
The court also denied Chase/383 Madison's reargument motion. (See NYSCEF No. 128.)
In December 2019, shortly before the scheduled start of trial, Ellis amended her complaint on consent to assert claims against additional defendants (apparently due to Chase's statement at a pretrial conference that it intended at trial to lay responsibility for Ellis's accident at the feet of those additional defendants, leaving Ellis potentially without recourse unless they were brought into the action). Ellis added two new defendants: Jones Lang Lasalle Americas, Inc. (Jones Lang), the facilities manager for the 383 Madison building; and ABM Industries, Inc., a Jones Lang subcontractor providing janitorial services, including at the loading dock where Ellis was injured. Jones Lang later impleaded another subcontractor, Empire Office, Inc.
Technically, the amended complaint added several related ABM defendants, referred to collectively as ABM.
Following Ellis's amendment of her complaint, trial was scheduled to begin in early April 2020. That trial date was derailed by the advent of the COVID-19 pandemic. ABM then moved to dismiss Ellis's complaint against it and to vacate her note of issue (a request joined in by Chase and 383 Madison). This court denied that motion. (See Ellis v. JPMorgan Chase Bank Natl. Ass'n, 2020 NY Slip Op 50606[U] [Sup Ct, NY County May 27, 2020].)
Following this court's May 2020 decision, the parties engaged in additional discovery. Following this discovery, and the resumption of civil trials in New York County, trial was eventually scheduled for March 2022, then adjourned to June 2022. The action was transferred to Justice Denise M. Dominguez of this court for trial.
Defendants then sought leave, without opposition from Ellis, to bring the current dispositive motions. Following consultation among the undersigned, Justice Dominguez, and Administrative Justice Adam Silvera, it was determined that the undersigned would consider and resolve the motions; and that any remaining issues would be tried before Justice Dominguez.
Now pending before this court, therefore, are four summary-judgment motions. On motion sequence 008, Jones Lang seeks dismissal of plaintiff's claims against it and Chase and ABM's cross-claims against it. On motion sequence 009, Empire seeks dismissal of Jones Lang's third-party claim against it. On motion sequence 010, ABM seeks dismissal of plaintiff's claims against it. On motion sequence 011, Chase and 383 Madison renew their request for dismissal of plaintiff's claims against them; and Ellis cross-moves for summary judgment, for additional spoliation sanctions, and for monetary sanctions under 22 NYCRR 130-1.1.
These motions (and Ellis's cross-motion) are consolidated here for disposition. Jones Lang's motion is denied. Empire's motion is granted. ABM's motion is denied. Chase/383 Madison's motion, and Ellis's cross-motion, are denied.
DISCUSSION
A party seeking summary judgment must show prima facie that it is entitled to judgment as a matter of law by proffering evidence demonstrating the absence of any material issue of fact. If the movant fails to make this showing, the motion must be denied. (See Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986].) Once the movant meets its burden, then the opposing party must produce evidentiary proof in admissible form sufficient to raise a triable issue of material fact. (See Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980].) In deciding the motion, the court must draw all reasonable inferences in favor of the nonmoving party and deny summary judgment if there is any doubt about the existence of a material issue of fact (See Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012]; Branham v Loews Orpheum Cinemas, Inc., 8 N.Y.3d 931, 932 [2007]). When "different conclusions can reasonably be drawn from the evidence, the motion should be denied." (Sommer v Federal Signal Corp., 79 N.Y.2d 540, 555 [1992].)
I. Jones Lang's Summary-Judgment Motion (Mot Seq 008)
Jones Lang moves for summary judgment on two sets of claims: (i) Ellis's tort claims against it; and (ii) Chase's and ABM's indemnity claims against it. The motion is denied in its entirety.
Strictly speaking, both Chase and 383 Madison have asserted cross-claims against Jones Lang. For simplicity, references in this decision to "Chase's cross-claims" refer to the two sets of cross-claims collectively.
A. The Branch of Jones Lang's Motion Seeking Dismissal of Ellis's Claims Against It
Jones Lang first seeks dismissal of Ellis's claims against it. Jones Lang argues both that as a matter of law it owed no duty to Ellis in tort and that as a matter of law it did not act negligently in any event. This court disagrees on both counts.
1. Whether Jones Lang owed Ellis a tort duty
With respect to duty, Jones Lang's responsibilities relating to the loading dock where Ellis was injured arose solely from a contract between Jones Lang and Chase (rather than by virtue of ownership or control of the loading dock by Jones Lang). Undisputedly, therefore, Jones Lang could owe Ellis a duty in tort only if this case comes within one of the three exceptions identified by Espinal v Melville Snow Contractors to the general rule that A's contractual obligation to provide services to B does not also give rise to a tort duty owed by A to C. (See 98 N.Y.2d 136, 138-140 [2002].)
Of these three scenarios, only two are potentially applicable here: (i) "where the contracting party has entirely displaced the other party's duty to maintain the premises safely"; and (ii) "where the contracting party, in failing to exercise reasonable care in the performance of his duties, 'launches a force or instrument of harm.'" (Id. at 140 [internal quotation marks and alteration omitted].) This court concludes that the first scenario does not apply in this case; and that the second scenario does apply.
The remaining scenario, in which "the plaintiff detrimentally relies on the continued performance of the contracting party's duties" (98 N.Y.2d at 140), is inapplicable here because there is no suggestion that Ellis was relying on Jones Lang's management of the loading dock.
a. The contractual-displacement Espinal exception
Jones Lang contends that its contractual responsibilities to manage the 383 Madison building, including its loading dock, did not bring it within the first, "contractual displacement" scenario. This court agrees. This exception to the general no-duty rule requires a "comprehensive and exclusive" contract under which A is assuming all of the responsibilities owed by B that otherwise would exist. (Church v Callanan Indus., 99 N.Y.2d 104, 113 [2002] [internal quotation marks omitted].) With respect to a property owner B, it is as though the owner has "relinquish[ed] its duty to inspect and safely maintain the premises" to A. (Lehman v North Greenwich Landscaping, LLC, 16 N.Y.3d 747, 748 [2011].) A has, in effect, taken B's place; and therefore owes all B's property-owner duties to parties like C who come onto the property. If this exception were to apply here, Jones Lang would be responsible for the condition of the loading dock that Ellis alleges led to her being injured-and Chase would not.
Jones Lang concededly had contractual responsibilities regarding the loading dock, as part of its broader obligation to manage and maintain 383 Madison. But Jones Lang persuasively contends that these responsibilities were not so comprehensive and exclusive as to displace Chase's obligations on the loading dock.
The record contains evidence that activity on the loading dock was directed by a Chase dockmaster, and, more broadly, that the loading dock was staffed at all times by personnel from Chase-not from Jones Lang. The record also contains evidence that the Chase dockmaster and other Chase staff could, and regularly did, ask Jones Lang facilities staff (or Jones Lang's janitorial subcontractor ABM) to remove items or debris from the loading dock to keep it clear. This evidence, if credited, would cut strongly against a conclusion that Jones Lang had exclusive responsibility for maintaining the loading dock in a safe condition. (See Waters v Ciminelli Dev. Co., Inc., 147 A.D.3d 1396, 1397 [4th Dept 2017] [in context of snow-removal contract, holding that even though the snow-removal contractor was delegated 24/7 responsibility for monitoring the property, the contract did not displace the property-owner's duty for the property, where the owner could request additional snow-removal services from the contractor, and the owner's property manager could direct the contractor in the performance of its work]; accord Hutchings v Garrison Lifestyle Pierce Hill, LLC, 157 A.D.3d 1034, 1035-1036 [3d Dept 2018]; Pinto v Walt Whitman Mall, LLC, 175 A.D.3d 541, 543-544 [2d Dept 2019].)
Jones Lang has shown, prima facie, that its contractual obligations for the loading dock did not displace Chase's duties relating to the loading dock (and therefore that Jones Lang did not owe Ellis a tort duty under this Espinal exception). In opposition, Chase relies on the master facility-management contract between Chase and Jones Lang for numerous Chase facilities in the northeastern United States (including 383 Madison). This contract provides that Jones Lang is responsible for keeping clear loading docks at these facilities. (See NYSCEF No. 502 at 2-4, 13-16, 23-24 [memorandum of law], citing NYSCEF No. 347; see also NYSCEF No. 347 at § 3.17.1 [b] [xii] [requiring Jones Lang to maintain loading docks and keep deck areas free of trash, pests and natural debris].) Chase contends that under this agreement, Jones Lang had comprehensive and exclusive responsibility for maintaining the 383 Madison loading dock. This contention does not show that a factual dispute exists on this issue.
The master agreement itself excepts a number of services, including security, from the scope of Jones Lang's management services for Chase. (See id. at § 2.5 [c].) And it provides that Chase retains responsibility for "[e]stablish[ing]... policies, procedures, standards and rules that [Jones Lang] must comply with" in managing Chase facilities, that Jones Lang "shall interface with [Chase] building occupants to perform its day-to-day responsibilities, and that Chase retains a "[r]ight of inspection and audit rights." (Id. at § 2.5[d] [ii], [vi], [vii].)
Additionally, the text of the agreement alone does not address or resolve the state of affairs that obtained in practice at the specific building-and specific loading dock-at issue in this case. Chase does not provide evidence contrary to Jones Lang's showing that the person directing operations at the 383 Madison loading dock was a Chase employee; that only Chase employees and contractors were present on the loading dock at all times; and that Jones Lang employees and contractors routinely acted on the requests of Chase personnel with respect to keeping the loading dock free of furniture, debris, and other obstructive items. Nor is this court persuaded that the caselaw Chase cites on this issue requires denying summary judgment.
Chase states that Jones Lang "cannot ignore the reality that [it] had a presence at the building since it maintained offices there," and "[a]s such," Jones Lang was "on-site every day." (NYSCEF No. 500 at 18.) That Jones Lang employees were present each day in the building-a Midtown office skyscraper-is quite different from their being present at all times on the loading dock where Ellis was injured.
In Tushaj v 322 Elm Management Associates, Inc., the question before the Appellate Division, First Department, was whether monetary limits on the management company's unilateral authority to make repairs sufficed to vitiate a jury finding that the management company had "complete and exclusive control of the management and operation of the building." (293 A.D.2d 44, 46-47 [1st Dept 2002].) The First Department held only that those monetary limits did not render the jury's finding contrary to the weight of the evidence in a case involving unperformed repairs within the monetary limits. (See id. at 48.) The First Department did not have occasion to address whether the issue of the extent of the management company's control over the building should have gone to the jury in the first place. Similarly, Giarratani v We're Associates, Inc., held that the presence of a monetary limit on the property-management company's authority to make unilateral repairs was not sufficient to show prima facie that the property manager lacked comprehensive and exclusive contractual authority over the premises, "particularly in the absence of any proof that the cost of the repair would have exceeded" that limit. (29 A.D.3d 946, 948 [2d Dept 2006].) That holding does not undermine the force of Jones Lang's evidence here about the continuing role and authority of Chase employees in keeping the 383 Madison loading dock clear.
No fact question requiring trial exists about whether Jones Lang had comprehensive and exclusive authority over the loading dock that would displace Chase's duty to maintain the dock and give rise to a tort duty running from Jones Lang to Ellis. The record establishes that Jones Lang did not have that authority.
b. The force-of-harm Espinal exception
Jones Lang also argues that its conduct did not come within the other relevant Espinal exception, for actions that launched a force of harm- i.e., that created or exacerbated a dangerous condition. This court is not persuaded that Jones Lang has established the inapplicability of this Espinal exception as a matter of law.
Jones Lang contends that it did not create or exacerbate a dangerous condition on the loading dock. Jones Lang argues that its actions with respect to the loading dock in the period leading up to the underlying accident were limited to a monthly inspection of the dock that it had performed three days before Ellis was injured. Chase argues in response that if that inspection had failed to address a dangerous condition on the loading dock, that failure could constitute the launch of a force of harm. (NYSCEF No. 502 at 20-21.) This court is skeptical of that argument as a legal matter. (See Stiver v Good & Fair Carting & Moving, Inc., 9 N.Y.3d 253, 257 [2007] [rejecting argument that defendant could "be said to have launched an instrument of harm" by allegedly performing a negligent vehicle inspection "since there is no reason to believe that the inspection made [the] vehicle less safe than it was beforehand]. ) But even if this court were to find Chase's legal argument on this point to be convincing, Chase has failed to identify any evidence that might give rise to a factual dispute about whether Jones Lang negligently performed the monthly inspection.
Accord Vasquez v Port Auth. of NY & N.J. (100 A.D.3d 442, 442 [1st Dept 2012] [holding that a maintenance contractor's alleged breach of its contractual duty to inspect stairs in the Port Authority Bus Terminal, standing alone, did not launch a force or instrument of harm]); All Am. Moving & Storage, Inc. v Andrews (96 A.D.3d 674, 676 [1st Dept 2012] [holding, in the context of a warehouse fire, that the sprinkler company's breach of its contractual duty to inspect the warehouse's sprinklers did not launch a force or instrument of harm]). Chase relies instead on the First Department's decision in Castlepoint Insurance Company v. Moore (109 A.D.3d 718, 719 [1st Dept 2013]). There, the Court held, among other things, that a question of fact existed about whether a chimney-inspection company exacerbated a dangerous condition by failing to inspect (or inadequately inspecting) a homeowner's gas fireplace after an inspection had been requested based on complaints that the fireplace leaked smoke into a neighboring residence. It is not entirely clear what this aspect of the Court's holding rests on. As this court reads the decision, though, the dangerous condition in that case was the homeowner's putting the fireplace back into service after the inspection in the (mistaken) belief that the problem leading to the inspection request had been resolved. (See id. at 719; see also Ocampo v Abetta Boiler & Welding Serv., Inc., 33 A.D.3d 332, 333 [1st Dept 2006] [holding that a fact question existed about whether defendant launched a force of harm by negligently repairing a machine, because evidence existed that the "machine was put back into operation only after it was believed that the repair had been made].) In this case, on the other hand, the inspection at issue was the contractually required monthly inspection of the loading dock. Thus, unlike in Castlepoint Insurance or Abetta Boiler, Jones Lang did not inspect the dock in response to a specific complaint of that some aspect of operations on the dock was defective or dangerous. Nor does the record suggest that the inspection might have led either Chase or Jones Lang to resume operations on the dock that had been halted pending inspection.
That Jones Lang's monthly inspection does not implicate the force-of-harm Espinal exception does not end the inquiry, though. The record contains evidence that large items on the dock that needed to be disposed of, such as articles of furniture, would be removed by Jones Lang's janitorial contractor (ABM) by placing (or perhaps throwing) those items into a large, "30-yard" dumpster. The record also contains evidence that no 30-yard dumpster was on the loading dock on the day of Ellis's accident (see NYSCEF No. 338 at Tr. 82-84 [deposition testimony of Chase dockmaster]; NYSCEF No. 342 at Tr. 33 [deposition testimony of ABM supervisor]); and that at the time of Ellis's accident, Jones Lang had either sole or shared responsibility for requesting that a full 30-yard dumpster be removed and an empty one dropped off in its place (see id. at Tr. 28-29; NYSCEF No. 341 at Tr. 98-102 [deposition testimony of Jones Lang facilities manager]).
On this record, a reasonable jury could conclude that the absence of a 30-yard dumpster (for which Jones Lang was responsible) led to ABM janitors being unable to dispose of furniture and other large items needing disposal, which in turn caused them to build up on the loading dock. (See NYSCEF No. 342 at Tr. 34-35 [stating that the buildup of large items on the loading dock occurred at the place on the dock where ABM janitors would bring and leave items to be placed in the 30-yard dumpster].) And this court continues to adhere to its conclusion from Chase's prior summary-judgment motion that the buildup of items on the loading dock created a dangerous condition. (See Ellis, 2019 NY Slip Op 32796[U], at *4.) The additional depositions and other discovery taken since this court rendered that ruling have not undermined this view-if anything, some of that deposition testimony has strengthened it. (See NYSCEF No. 342 at Tr. 35-36 [ABM supervisor testifying that the extent of buildup of large items, was a "rare occurrence," that he saw "maybe... three or four times" in approximately two years of working at 383 Madison].)
This connection between the actions (or inaction) of Jones Lang employees and the creation of a dangerous condition on the loading dock would give rise under Espinal to a tort duty running from Jones Lang to users of the loading dock like Ellis. Jones Lang's motion for summary judgment based on the (putative) absence of a tort duty to Ellis is denied.
On reply, Jones Lang emphasizes that "plaintiff is in agreement with [Jones Lang] that [it] did not owe a duty or cause or create a condition" contributing to her accident. (NYSCEF No. 527 at 9 [emphases omitted].) But Ellis is not the only party to this action that is affected by this court's resolution of questions about whether Jones Lang did (or did not) act negligently. This court declines in these circumstances to treat Ellis as, in effect, having conceded away not only her own claim against Jones Lang, but also Chase's and ABM's indemnification cross-claims.
2. Whether Jones Lang breached its duty to Ellis
Given this court's conclusion that a reasonable jury could find that Jones Lang owed Ellis a tort duty under Espinal, the question becomes whether a reasonable jury could also find that Jones Lang breached that duty. This court concludes that it could.
A reasonable jury could find that Jones Lang was contractually responsible for keeping the loading dock clear-and that it failed to discharge that responsibility in this case. True, no party has identified evidence suggesting that Jones Lang had actual notice of the dangerous condition here. But that still leaves the issue of constructive notice. On constructive notice, Jones Lang's burden in moving for summary judgment is to show that the record lacks evidence that would support a finding that Jones Lang was constructively on notice-namely, evidence about "how the alleged condition came into existence, how visible and apparent it was, and for how long a period of time prior to the accident it existed." (Giuffrida v Metro N. Commuter R.R. Co., 279 A.D.2d 403, 404 [1st Dept 2001].) Jones Lang has not met that burden here.
The record contains evidence of an obvious and unusual accumulation of large items of furniture and the like on the loading dock-of the sort that would take some time to develop. To be sure, as Jones Lang points out, its monthly inspection three days prior had not identified any problems on the loading dock. But that fact alone does not rule out the possibility that an improper buildup on the dock of debris and items needing disposal had occurred between when the inspection went through and when Ellis was injured. And the record contains evidence that Jones Lang personnel regularly came through the loading dock, either to perform a spot check of the status of the dock or to reach the Jones Lang offices in the building, such that they could have seen the dangerous condition on the dock prior to Ellis's being injured.
Jones Lang has not shown as a matter of law that Ellis's tort claims against it should be dismissed.
B. The Branch of Jones Lang's Motion Seeking Dismissal of Chase's and ABM's Cross-Claims
Jones Lang also seeks summary judgment dismissing common-law and contractual indemnification cross-claims brought against it by Chase; and common-law indemnification cross-claims brought against it by ABM. This branch of Jones Lang's motion is denied as well.
As discussed above, factual disputes exist about whether, and to what extent, Ellis's injuries resulted from negligent conduct by Jones Lang. And, as discussed below, similar disputes exist with respect to Chase and ABM. Thus, the existence and extent of Jones Lang's indemnity obligations to Chase and ABM depends on how a jury resolves the questions whether (i) Ellis's injuries resulted from Jones Lang's negligence (and to what extent); (ii) Ellis's injuries resulted from Chase's negligence, so as to foreclose a common-law indemnification claim against Jones Lang, and to bar or limit the scope of any contractual-indemnification claim (see General Obligations Law § 5-321); and (iii) Ellis's injuries resulted from ABM's negligence so as to foreclose any claim by ABM against Jones Lang for common-law indemnity. Summary judgment is inappropriate in these circumstances.
II. Empire's Summary-Judgment Motion (Mot Seq 009)
Empire is a Jones Lang subcontractor, hired to perform carpentry and masonry work within 383 Madison, repair building furniture, and the like. Empire moves for summary judgment dismissing Jones Lang's third-party claims against it on the ground that Empire's work was not connected to the loading dock and did not contribute to any dangerous condition on the dock. The motion is granted.
In support of its motion, Empire has offered evidence that its subcontract did not entail performing work on or near the loading dock; and that the byproducts of the work that Empire did do in 383 Madison were not disposed of by leaving them on the loading dock where the buildup of items in this case occurred. This evidence establishes prima facie that Empire cannot be held liable in indemnity to Jones Lang (on either a contractual or common-law basis). The limited contrary evidence that Jones Lang submits in opposing the motion is insufficient to raise a dispute of material fact.
III. ABM's Summary-Judgment Motion (Mot Seq 010)
ABM, Jones Lang's janitorial subcontractor, moves for summary judgment dismissing Ellis's claims, and Chase's and Jones Lang's cross-claims, against it. The motion is denied.
As in this court's discussion of Jones Lang's motion, references in this section to "Chase's" cross-claims refer both to the cross-claims asserted by Chase and those asserted by 383 Madison.
Like Jones Lang, ABM owes Ellis a duty in tort only if one of the Espinal exceptions applies to their conduct. The detrimental-reliance exception is irrelevant here-no party contends that Ellis relies on ABM's performance of its contractual duties. And the contractual-displacement exception is inapplicable to ABM for much the same reasons as Jones Lang, as discussed above. Indeed, given that ABM's subcontract is limited to janitorial services (rather than a much broader array of facility-management responsibilities), the case for applying that exception to ABM is weaker than it was with respect to Jones Lang.
That leaves the launch-a-force-of-harm exception. This exception applies to ABM's performance of its contractual responsibilities. Record evidence suggests, for example, that ABM shared responsibility with Jones Lang for ordering 30-yard dumpsters when they were needed on the loading dock (or for ordering pickups of 30-yard dumpsters that needed to be emptied and returned). (See NYSCEF No. 341 at Tr. 98-102 [testimony of Jones Lang supervisor].) The record also contains evidence that the buildup of items prior to Ellis's injury occurred at the location on the loading dock where ABM employees would leave large items requiring disposal, absent a 30-yard dumpster to place them in. (See NYSCEF No. 342 at 34-35 [testimony of ABM supervisor].)
A reasonable jury could conclude, based on this evidence, that ABM's conduct in the course of performing its contract exacerbated the dangerous condition of furniture and other large items building up on the 383 Madison loading dock, as opposed to merely failing to improve that problem. In that circumstance, ABM would owe a duty in tort to individuals, like Ellis, who were exposed to the cluttered condition of the loading dock.
As with Jones Lang, the record also contains evidence that ABM was on constructive notice of the condition of the loading dock-not least because ABM porters went through the dock at least twice a day to check it for spills, debris, and other conditions requiring cleanup. Whether ABM acted negligently in failing to take steps to address that dangerous condition-for instance, by requesting delivery of a 30-yard dumpster and disposing of the items in that dumpster, or raising the condition of the loading dock with Chase or Jones Lang staff as an issue requiring attention-is a question that the jury, not this court, should resolve.
Thus, as in the case of Jones Lang's motion, questions of fact also remain about whether, and to what extent, ABM is liable to Chase and to Jones Lang on their indemnification cross-claims.
IV. Chase/383 Madison's Summary-Judgment Motion and Ellis's Cross-Motion (Mot Seq 011)
Chase and 383 Madison move, again, for summary judgment dismissing the claims against them. Ellis cross-moves to have Chase/383 Madison's answer stricken as a spoliation sanction and summary judgment granted against them in her favor; and also for monetary sanctions against Chase/383 Madison under 22 NYCRR 130-1.1. The motion and cross-motion are denied.
Although it is not entirely clear from their motion papers, this court takes Chase/383 Madison to be renewing its request to dismiss Ellis's claims and adding a new request to dismiss Jones Lang's and ABM's cross-claims.
A. Chase/383 Madison's Motion
As noted above, this court has already held once that Chase/383 Madison are not entitled to summary judgment dismissing Ellis's claims against them-and had that holding affirmed by the First Department. (See Ellis, 2019 NY Slip Op 32796[U], affd 190 A.D.3d 413.) With respect to Chase, this court is not persuaded that the arguments made by Chase in this renewed motion-or the putatively new facts on which Chase relies-alters this court's conclusions, either with respect to Chase's liability or Ellis's possible comparative fault. Chase's renewed request for summary judgment on Ellis's claims is again denied. Given that denial, no basis exists at this time to dismiss Jones Lang's and ABM's indemnification cross-claims, either.
Chase/383 Madison, contending that plaintiff had improperly introduced new evidence on reply, have sought leave to file a surreply. (NYSCEF No. 541.) This court's conclusion that summary judgment is unwarranted does not rest on the disputed material in plaintiff's reply. The request for a surreply is denied as academic.
As for 383 Madison, this court held on the first summary-judgment motion that 383 Madison had not cited any admissible evidence demonstrating that "it was merely the owner of the building, and lacked control of the loading dock where the accident occurred"; and that "[a]bsent some additional showing that 383 Madison did indeed lack control of and responsibility for the site of the accident," it was not entitled to summary judgment. (Ellis, 2019 NY Slip Op 32796, at *4.) 383 Madison has not supplied that showing on this motion. Its renewed request for summary judgment is denied.
The Chase/383 Madison motion papers do not include any admissible evidence going to the relationship between them, or substantiating their contention that 383 Madison is solely an out-of-possession landlord. The motion's statement of material facts asserts that "Section 9 of the Lease specifically provides that Chase is responsible for all maintenance to the premises." (NYSECF No. 420 at 44.) But Chase/383 Madison have not submitted the lease. They assert that the lease is confidential (see NYSCEF No. 419 at 17); but they did not e-file a copy of the lease in restricted status, seek leave to file the lease under seal, or submit a copy of the lease directly to the court for in camera review (on notice to the other parties). Nor does the motion identify any other evidence to support dismissal of 383 Madison, in particular, from the case. Summary judgment is not warranted in these circumstances.
At most, Chase/383 Madison offered to provide a copy of the lease for in camera review upon request. (See NYSCEF No. 419 at 17.) But it is a party's obligation in moving for relief to put before the court the evidence supporting the motion-not the court's obligation to ask for a copy of the evidence.
B. Ellis's Cross-Motion
Ellis's cross-motion seeks two forms of sanctions. One seeks renewed relief for spoliation. The other is based on what Ellis heatedly contends to be an "overwhelming number of lies, deceptions, inconsistencies, illogicalities and irrelevancies" that violate § 130-1.1. (NYSCEF No. 531 at 40.)
Taking the latter request first, this court disagrees with Ellis that Chase/383 Madison's papers in support of its renewed summary-judgment motion are sanctionable. The statements that Ellis repeatedly brands as lies reflect, at most, vigorous disagreement between the parties about the meaning and significance of evidence in the record. These statements, whatever their ultimate probative value, fall well within the bounds of legitimate advocacy. This court sees no basis to award § 130-1.1 sanctions here.
Ellis's renewed request for spoliation sanctions presents more challenging questions. This court previously granted an adverse inference against Chase on the issue of prior notice of the dangerous condition on the loading dock, based on those defendants' negligent destruction of video surveillance footage of the loading dock on the day of the accident. (See 2019 NY Slip Op 32796[U], at *1-2, affd 190 A.D.3d at 414.) Chase's dockmaster later admitted in a supplemental deposition that she was aware of the condition of the loading dock on the morning of the accident-in other words, that she had actual notice of the condition. (See NYSCEF No. 478 at 19 [attorney affirmation in support of cross-motion].) Ellis contends that this admission renders "her entitlement to meaningful [spoliation] sanctions... entirely moot," warranting the imposition now of sterner sanctions. (Id. at 20; see also NYSCEF No. 480 at 0 [mem. of law] [arguing that the dockmaster's admission rendered "moot" the "penalty that plaintiff was entitled to as the result of [Chase] destroying video evidence"].) This court is unpersuaded.
The purpose of spoliation sanctions under New York law is to "provide proportionate relief to a party deprived of lost or destroyed evidence": for example, precluding "proof favorable to the spoliator to restore balance to the litigation, requiring the spoliator to pay costs to the injured party associated with the development of replacement evidence, or employing an adverse inference instruction at the trial of the action." (Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 N.Y.3d 543, 551 [2015].) This type of sanction, in other words, serves a remedial function-not, as Ellis suggests, a retributive one. For this reason, there is no merit to Ellis's argument that Chase's concession on the issue of notice warrants sterner spoliation sanctions to ensure that Chase/ remains subject to "sanctions that carry a penalty (not [sanctions] that hav[e] been rendered moot." (NYSCEF No. 478 at 23.) Indeed, if anything that concession might weaken the case for imposing spoliation sanctions, because it would tend to ameliorate any prejudice to Ellis caused by Chase's culpable destruction of the surveillance footage of the loading dock.
Ellis's renewed request for spoliation sanctions also rests on what she contends to have been the improper destruction of a logbook in which Chase's dockmaster recorded the accident in this case. (See NYSCEF No. 480 at 9-10.) Ellis states that she learned about the loss of this logbook only during the dockmaster's supplemental deposition, taken after this court's initial summary-judgment decision. Ellis's papers do not explain, however, why the loss or destruction of this logbook was not uncovered during pre-note discovery in the action and made the subject then of a spoliation motion.
Additionally, in the same testimony on which Ellis relies, Chase's dockmaster testified that other hourly logbooks, not just the one in which she recorded Ellis's accident, were missing, which tends to undermine the inference of culpability that Ellis seeks to draw. (See NYSCEF No. 493 at Tr. 142:4-11.) The dockmaster's testimony did not specify-and Ellis's counsel did not inquire-when she last saw the logbook at issue (or the other missing logbooks), whether it was unusual for logbooks to be lost notwithstanding Chase's multiyear retention policy. Nor did Ellis's counsel ask other questions that might have shed light on how the loss or destruction of this logbook might have occurred.
Most fundamentally, Ellis does not identify the prejudice she has suffered due to the loss or destruction of the logbook: namely, what relevant and material information about the accident she has lost because it only appeared in the logbook and could not be reconstructed from other sources (such as the deposition of the dockmaster herself). From what this court can tell, the record contains extensive evidence about the circumstances of the accident itself-the issue on which the logbook might shed light. The questions that require trial all involve the proper allocation of fault and responsibility for the accident among plaintiff, Chase/383 Madison, Jones Lang, and ABM. Ellis has not shown that the loss of this logbook, whenever the loss occurred and whenever she became aware of it, has impaired her ability to provide satisfactory answers to these questions to a jury. On this record, this court is disinclined to impose additional sanctions, much less the drastic sanction of striking Chase/383 Madison's answer and awarding plaintiff summary judgment.
Accordingly, for the foregoing reasons, it is
ORDERED that Jones Lang's motion for summary judgment (mot seq 008) is denied; and it is further
ORDERED that Empire's motion for summary judgment (mot seq 009) is granted, and Jones Lang's third-party claim against Empire is dismissed, with costs to be taxed by the Clerk upon the submission of an appropriate bill of costs at the close of the case; and it is further
ORDERED that ABM's motion for summary judgment (mot seq 010) is denied; and it is further
ORDERED that Chase's renewed motion for summary judgment (mot seq 011) is denied; and it is further
ORDERED that 383 Madison's renewed motion for summary judgment (mot seq 011) is denied; and it is further
ORDERED that Ellis's cross-motion (mot seq 011) seeking the imposition of sanctions under 22 NYCRR 130-1.1; and the striking of Chase/383 Madison's answer as a spoliation sanction; and the grant of summary judgment in Ellis's favor is denied; and it is further
ORDERED that the parties are directed to confer expeditiously among themselves and with Administrative Justice Adam Silvera and Justice Denise M. Dominguez of this court to determine an appropriate date to begin the trial of this matter.