Opinion
306443/11
07-05-2017
Maritza Fernandez, Plaintiff, v. The Chase Manhattan Bank, N.A., J.P. MORGAN CHASE & CO. and MCGUIRE'S SERVICE INC., Defendants.
Plaintiff's Attorney: Jonathan R. Avolio, Esq. Bader & Yakaitis, LLP 1430 Broadway, Suite 1802 New York, New York 10018 Chase Attorney: Shanna R. Torgerson, Esq. Brownell Partners PLLC 40 Wall Street, 52nd Floor New York, New York 10005 (212)390-0151 McGuire Attorney: Lawrence Lambert, Esq. Frenkel, Lambert, Weiss, Weisman & Gordon, LLP 53 Gibson Street Bay Shore, New York 11706 (631)969-7777
Plaintiff's Attorney: Jonathan R. Avolio, Esq. Bader & Yakaitis, LLP 1430 Broadway, Suite 1802 New York, New York 10018 Chase Attorney: Shanna R. Torgerson, Esq. Brownell Partners PLLC 40 Wall Street, 52nd Floor New York, New York 10005 (212)390-0151 McGuire Attorney: Lawrence Lambert, Esq. Frenkel, Lambert, Weiss, Weisman & Gordon, LLP 53 Gibson Street Bay Shore, New York 11706 (631)969-7777 Joseph E. Capella, J.
PAPERS/NUMBERED Notice of Motion — Exhibits & Affidavits Annexed 1 Cross-Motion — Exhibits & Affidavits Annexed 2 Answering Affidavit & Exhibits 3 Affirmation in Opposition/Reply 4 Reply to Answering Affidavit 5 Reply to Opposition 6 UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION AND CROSS-MOTION IS AS FOLLOWS:
In this slip and fall case, defendant McGuire's Service Corp. ("McGuire") moves for summary judgment dismissal of the amended complaint and cross-claims against it. Defendants J.P. Morgan Chase and Chase Manhattan Bank ("Chase") also cross-move for summary judgment dismissal of the complaint and cross-claims against it, and for summary judgment on its common-law indemnification claim. At the time of the alleged incident, the plaintiff was employed by a janitorial services company, United Building Maintenance, Inc. ("United"), retained by Chase to clean the inside of the subject bank. McGuire provided snow removal services at this bank pursuant to a service contract with Chase. The plaintiff claims that she slipped and fell on a snow and ice condition created by the defendants near a dumpster in the parking lot of the bank.
In general, a contractor such as McGuire owes no duty of care to non-contracting third-parties such as the plaintiff. (Fung v Japan Airlines, 9 NY3d 351 [2007].) However, a duty of care may arise if (1) McGuire failed to exercise reasonable care in the performance of its duties, and thereby "launches a force or instrument of harm," (2) plaintiff detrimentally relied upon the continued performance of McGuire's duties or (3) McGuire completely displaced Chase's duty to maintain the safety of the premises. (Espinal v Melville, 98 NY2d 136 [2002].) As a preliminary matter, the court must first address McGuire's allegation that the amended complaint and bill of particulars fail to set forth facts that would invoke an Espinal exception. (CPLR 3211(a)(7).) The amended complaint and bill of particulars alleges, inter alia, that McGuire contracted with Chase to provide snow and ice removal services, and failed to take reasonable and adequate precautions to prevent the negligent snow and ice condition in question. In determining whether a cause of action is properly plead, the pleadings should be afforded a liberal construction, the court should accept as true the facts alleged, accord the non-movant the benefit of every possible inference, and the court should only determine whether the facts, as alleged, fit within a cognizable legal theory. (Frank v Daimlerchrysler, 292 AD2d 118 [1st Dept 2002].) In other words, the court's role is limited to determining whether a cause of action is stated within the four corners, and not whether there is any evidentiary support. (Id.) Here, viewing the evidence in a light most favorable to plaintiff (Bielat v Montrose, 272 AD2d 251 [1st Dept 2000]), the court is satisfied that the aforementioned allegations sufficiently state a cause of action that may implicate an Espinal exception.
In determining summary judgment, however, the ultimate issue is not whether a cause of action is stated but whether there exists an issue(s) of fact. (Esteve v Abad, 271 AD 725 [1st Dept 1947].) Under the first Espinal exception, the burden is on McGuire to establish that it did not commit any affirmative act that created the alleged dangerous condition or exacerbated an already existing alleged dangerous condition thereby causing injury to plaintiff. (Medina v Milt Holdings, 131 AD3d 121 [1st Dept 2015].) Mere negligence by McGuire in performing its contractual obligations alone is insufficient unless said negligence "launches a force or instrument of harm." (Espinal, 98 NY2d 136.) Here, there is no dispute that McGuire plowed the snow that fell on the Chase branch parking lot one week prior to the accident, and placed it onto a grassy area near a dumpster in accordance with its contract. McGuire could not completely remove the snow from the area unless requested by Chase, and there is no dispute that Chase did not request removal of the snow. There is no proof that Chase observed, or was notified of, any icy condition near or around the relocated snow some time during the week after the snow fall but before the accident, which would have prompted them to contact McGuire to remove same. Given the aforementioned, the court is satisfied that McGuire has met its burden of demonstrating that it was not negligent, and even if it were, that said negligence did not launch a force or instrument of harm. The burden now shifts to the plaintiff. According to her deposition transcript, the plaintiff initially described what she fell on as ice, snow and dirt. (Tr at 50, line 20-22.) At a later point in the deposition, when asked whether she knew for a fact what it was she slipped on, the plaintiff responded "I could not tell you exactly." (Tr at 201, lines 11-15.) There is no affidavit from the plaintiff, which may have clarified her deposition testimony. As such, it appears that the plaintiff is speculating as to what actually caused her to fall.
Even if we were to assume that it was an icy condition that caused plaintiff's fall, there is no proof that McGuire's mere plowing of the snow in accordance with its contractual obligation created or exacerbated same. (Medina, 131 AD3d 121.) There is no evidence establishing how the ice formed, whether it was unusual or dangerous, or how long it existed. (Davis v City of New York, 255 AD2d 356 [2nd Dept 1998].) Here, the plaintiff relies exclusively upon her transcript to somehow infer that a visible and apparent icy condition existed for a sufficient period of time to be discovered, and that said condition was the product of the snow plowed near the dumpster one week earlier. Plaintiff provides no expert opinion as to whether such an icy condition may have existed at all, and if so, how long. (Robinson v Albany Housing Authority, 201 AD2d 997 [3rd Dept 2003].) Given the aforementioned, the plaintiff has not met her burden under the first Espinal exception.
Under the second Espinal exception, the plaintiff must have detrimentally relied upon the continued performance of McGuire's duties, that there was a failure to perform, and that failure resulted in plaintiff's injuries. Here, McGuire established, and plaintiff was unable to show otherwise, that plaintiff did not know that McGuire was retained by Chase to perform snow removal services at the branch in question. As such, it cannot be said that she detrimentally relied upon McGuire's continued performance. Moreover, plaintiff was relying on her own observations of the conditions in the parking lot as it existed on the day of her accident. (Dorestant v Snow, 274 AD2d 542 [2nd Dept 2000].) Based on the aforementioned, the second Espinal exception does not apply.
The last Espinal exception applies if McGuire completely displaced Chase's duty to maintain the safety of the premises in question. In other words, that Chase took no responsibility in keeping the premises in a safe condition. (Striver v Good & Fair, 9 NY3d 253 [2007].) In the instant case, testimony from Chase's facilities manager and a McGuire employee establishes that McGuire did not entirely absorb Chase's duty to maintain the parking lot as Chase regularly participated in and directed McGuire's snow plowing services. Chase would also send its own trucks to the bank to follow up and make sure the snow removal was properly performed. Moreover, the janitorial agreement between United and Chase required United to remove snow from various exterior areas of the bank, thus further demonstrating that McGuire did not have the sole responsibility to maintain the parking lot. (Mahaney v Neuroscience Ctr, 28 AD3d 432 [2nd Dept 2006].) Based on the aforementioned, this court is satisfied that none of the Espinal exceptions apply. McGuire's instant summary judgment motion is granted, and this action including the cross-claims are dismissed as against McGuire.
As already noted, Chase also seeks dismissal of the amended complaint, and does so on the theory that it did not have actual or constructive notice of the alleged dangerous ice and snow condition. Unlike contractors such as McGuire, who generally owe no duty of care to non-contracting third-parties such as the plaintiff, Chase has a duty to keep its property in a reasonably safe condition for individuals such as the plaintiff. In order to impose liability upon Chase, there must be evidence that it created or had notice, either actual or constructive, of a dangerous condition and failed to take reasonable measures to correct it. In this action, there is no proof as to who created the alleged dangerous condition. However, to the extent that a dangerous condition existed, constructive notice may arise where said condition was visible and apparent and existed for a sufficient period of time so that the owner should have discovered it. (Dombrowser v Maharia Realty, 296 AD2d 353 [1st Dept 2002].) As the initial inquiry is whether a dangerous condition existed, a plaintiff's inability to identify the cause of a fall may be fatal because under such circumstances, a finding that the defendant's negligence proximately caused the plaintiff's injuries would be based on speculation. Once again, even if we were to assume that an icy condition caused plaintiff's fall, there is no proof that the plowed snow created or exacerbated same. (Medina, 131 AD3d 121.) There is no evidence establishing how the ice condition may have formed, let alone how long it may have existed. (Davis, 255 AD2d 356; Robinson, 201 AD2d 997.) And there is no evidence that Chase received any complaints about snow, ice or any other dangerous condition near the dumpster prior to the accident. (Austin v CDGA National, 114 AD3d 1298 [4th Dept 2014].) Lastly, the plaintiff's suggestion that Chase failed to properly inspect the area in question avoids the initial inquiry as to whether a dangerous condition existed for a sufficient period of time to be discovered. Ultimately, the plaintiff's failure to sufficiently describe a dangerous condition is fatal to her claims. Therefore, the instant cross motion by Chase for summary judgment is likewise granted, and this entire action and the cross-claims are dismissed accordingly.
The defendants are directed to serve a copy of this decision/order with notice of entry by first class mail upon all sides within 30 days of receipt of same. This constitutes the decision/order of this court. Date: July 5, 2017 Joseph E. Capella A.J.S.C.