Opinion
Index No. 707707/18 Motion Cal. Nos. 11 12 13 & 14 Motion Seq. Nos. 2 3 4 & 5
03-31-2022
MARIANNE GHALY, Plaintiff, v. ST. JOHN'S UNIVERSITY, EXECUTIVE CLEANING SERVICES, LLC, EXECUTIVE CLEANING SERVICES OF LONG ISLAND LTD, and COLLINS BUILDING SERVICES, INC., Defendants.
Unpublished Opinion
Motion Date September 21, 2021
HONORABLE DARRELL L. GAVRIN Justice
The following papers numbered EF 55 - 175 read on the motion (Seq. 2) by plaintiff for summary judgment; motion (Seq. 3) by defendant, St. John's University for summary judgment dismissing the complaint and all cross claims alleged against it and granting its claim for contractual indemnification against defendant, Executive Cleaning Services, LLC; and motions (Seq. 4 &5) by defendants, Executive Cleaning Services of Long Island Ltd. and Executive Cleaning Services, LLC for summary judgment dismissing the complaint and all cross claims alleged against them.
Papers Numbered
Notice of Motion (Seq. 2) - Affirmation - Exhibits - Memorandum of Law................................................ EF 55 - 84
Response to Statement of Material Facts............................. EF 171
Memorandum of Law in Opposition.................................... EF 140
Affirmation in Opposition.................................................... EF 151-152
Reply Affirmation - Exhibit................................................. EF 158 - 160
Notice of Motion (Seq. 3) - Affirmation - Exhibits.......... EF 85 - 98
Memorandum of Law in Opposition.................................... EF 141
Reply Affirmation.................................................................. EF 175
Affirmation in Opposition - Exhibits - Memorandum of Law.. EF 99 - 108
Notice of Motion (Seq. 4) - Affirmation - Exhibits - Memorandum of Law.....................................................EF 109-132
Affirmation in Opposition - Exhibits - Memorandum of Law.. EF 143 - 150
Reply Affirmation - Exhibit................................................. EF 164-165
Affirmation in Partial Opposition.......................................... EFl68 - 169
Reply Affirmation - Exhibit.................................................... EF 172-173
Reply Affirmation.................................................................. EF 174
Notice of Motion (Seq. 5) - Affirmation - Exhibits - Memorandum of Law.................................................... EF 133-139
Affirmation in Opposition - Memorandum of Law.................. EF 153 - 157
Affirmation in Partial Opposition............................................. EF 161 - 163
Memorandum of Law in Reply..................................................EF 166 - 167
Memorandum of Law in Reply..................................................EF 170
Upon the foregoing papers, it is ordered that the motion sequences 2, 3, 4 and 5 are decided as follows:
Plaintiff commenced this action to recover damages for personal injuries she sustained on October 6, 2016 when she allegedly slipped and fell in a bathtub while taking a shower in her apartment located at 147-28 Union Turnpike, Apt. 2, in Queens, New York (hereinafter "premises"). Plaintiff was a graduate student at defendant St. John's University (hereinafter SJU) and was living in student housing owned by defendant, SJU. At the time of plaintiffs accident, defendant, SJU entered into an agreement with defendant, Executive Cleaning Services, LLC (hereinafter "ECS") for custodial and handyman services (hereinafter "SJU contract"). Defendant, ECS subcontracted the SJU contract to defendant, Executive Cleaning Services of Long Island Ltd. (hereinafter "ECSLI"). The parties move separately for summary judgment in their favor.
This court will first address defendant, SJU's motion. "A property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition." (Dougherty v 359 Lewis Ave. Assoc., LLC, 191 A.D.3d 763 [2d Dept 2021].) "In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence." (Fraser v 147 Rockaway Pkw, LLC, - A.D.3d -, 2022 NY Slip Op 01772 [2d Dept 2011].) Therefore, "[i]n a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence." (Beri v Chung Fat Supermarket, Inc., 125 A.D.3d 587 [2d Dept 2015].)
In support of its motion, defendant, SJU submitted, among other things, a copy of the SJU contract, a printout of work tickets related to work performed in plaintiffs apartment, the parties' deposition testimony, and an affidavit from its director of branch campus operations. Upon review of the evidence submitted, questions of fact exist as to who was responsible for maintaining the premises, which party installed the shower curtain rod in question, and whether SJU had constructive notice of the alleged defect. Further, the parties' deposition testimony reveals credibility issues, which are to be resolved by the trier of fact. (See Xiang Fu He v Troon Mgt., Inc., 34 N.Y.3d 167, 175 [2019]; Durand v Salvation Army, 186 A.D.3d 1325, 1326 [2d Dept 2020]; Sanders v Sangemino, 185 A.D.3d 617, 618 [2d Dept 2020], Iv dismissed, 35 N.Y.3d 1110 [2020].)
Accordingly, the motion by defendant, SJU for summary judgment, is denied.
With respect to SJU's claim for contractual indemnification, a party's right to contractual indemnification depends on the specific language of the relevant contract. (O'Donnell v A.R. Fuels, Inc., 155 A.D.3d 644, 645 [2d Dept 2017], quoting George v Marshalls of MA, Inc., 61 A.D.3d 925 [2d Dept 2009] [internal quotation marks omitted].) "The promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances." (Konsky v Escada Hair Salon, Inc., 113 A.D.3d 656, 659 [2d Dept 2014].)
The indemnification provision found in the SJU contract provides:
To the fullest extent permitted by law, [ECS] shall indemnify, defend and hold [S]U], its Board of Trustees, officers, employees, agents and servants harmless from and against all claims, suits, damages, liabilities, losses, demands, costs and expenses, including reasonable attorneys' fees and disbursements, and punitive damages of every kind and nature, by or on behalf of any person, firm, association or corporation, in connection with [ECS's] performance under this Agreement. [ECS's] obligation to indemnify the University shall survive the expiration or termination of this Agreement.
Although the contract is sufficiently specific to compel indemnification as stated herein, there are triable issues of fact concerning the degree of fault attributable to the indemnified parties. Therefore, summary judgment on this contractual indemnification claim against defendant, ECS is not appropriate at this juncture. (See Shaughnessy v Huntington Hosp. Assn, 147 A.D.3d 994, 1000 [2d Dept 2017]; Langner v Primary Home Care Servs., Inc., 83 A.D.3d 1007 [2d Dept 2011].)
This court will next address defendants, ECSLI's and ECS's respective motions for summary judgment. "Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party." (Lancene Union v Excel Commercial Maintenance, 185 A.D.3d 869, 869 [2d Dept 2020], quoting Espinal v Melville Snow Contrs., 98 N.Y.2d 136, 138 [2002].) "[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party." (Espinal v Melville Snow Contractors, Inc., 98 N.Y.2d 136, 138 [2002]; Szulinska v Elrob Realty, LLC, 190 A.D.3d 777 [2d Dept 2021], quoting Arnone v Morton's of Chicago/Great Neck, LLC, 183 A.D.3d 862 [2d Dept 2020].) "However, there are three exceptions to this general rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm or creates or exacerbates a hazardous condition; (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." (Cikoja v Diebold, Inc., 182 A.D.3d 573 [2d Dept 2020], quoting Hagan v City of New York, 166 A.D.3d 590, 592 [2d Dept 2018]; see Espinal v Melville Snow Contractors, Inc., 98 N.Y.2d at 140.)
In support of their respective motions, defendants, ECSLI and ECS submitted, among other things, the parties' deposition testimony, a copy of the SJU contract and the contract between defendants, ECSLI and ECS (hereinafter "subcontract"). In the case at bar, defendants, ECSLI and ECS both failed to demonstrate that they did not owe a duty of care to plaintiff. It is unclear from the SJU contract whether defendant, ECS has entirely displaced defendant, SJU's duty to maintain the premises. The SJU contract does not specify what tasks, if any, were defendant, ECS required to perform on a regular basis with respect to the premises. The subcontract it is also silent as to defendant, ECSLI's specific tasks with respect to the premises. The subcontract does not refer back to the SJU contract. Further, the witnesses who testified on behalf of defendants, ECS, ECSLI and SJU provided conflicting testimony regarding their responsibilities. "Summary judgment 'should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility.'" (Singletary v Alhalal Rest., Inc., 163 A.D.3d 738, 739 [2d Dept 2018], quoting Ruggiero v DePalo, 153 A.D.3d 870, 872 [2d Dept 2017].) Therefore, defendants, ECSLI and ECS failed to establish their prima facie entitlement to judgment as a matter of law. (Taliana v Hines REIT Three Huntington Quadrangle, LLC, 197 A.D.3d 1349, 1352 [2d Dept 2021].)
Accordingly, the motions by defendants, ECS and ECSLI for summary judgment, are denied.
This court will now consider plaintiffs motion. "A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries." (Sebagh v Capital Fitness, Inc., 202 A.D.3d 853 [2d Dept 2022].) "Although a plaintiff need not demonstrate the absence of his or her own comparative negligence to be entitled to partial summary judgment as to a defendant's liability (see Rodriguez v City of New York, 31 N.Y.3d 312, 324-325), the issue of a plaintiffs comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff moved for summary judgment dismissing a defendant's affirmative defense of comparative negligence." (Poon v Nisanov, 162 A.D.3d 804, 808 [2d Dept 2018]; see Ramirez v Wangdu, 195 A.D.3d 646 [2d Dept 2021].)
As summary judgment is to be considered the procedural equivalent of a trial, "it must clearly appear that no material and triable issue of fact is presented. This drastic remedy should not be granted where there is any doubt as to the existence of such issues, or where the issue is 'arguable.'" (Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957] [citations omitted]; see Bader v Riv. Edge at Hastings Owners Corp., 159 A.D.3d 780, 783 [2d Dept 2018].)
In the instant case, plaintiff failed to establish her prima facie entitlement to judgment as a matter of law on the issue of liability. As discussed above, it is unclear which defendant or defendants owed plaintiff a duty to maintain the premises. Further, the evidence submitted in support of her motion presented a triable issue of fact as to whether plaintiff provided proper notice of the alleged condition.
Consequently, the parties' failure to make the requisite showing requires denial of their respective motions, regardless of the sufficiency of the opposition papers. (See Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]; Stanger v City of New York, 190 A.D.3d 776, 777 [2d Dept 2021].)
The parties' remaining arguments and contentions are either without merit or need not be addressed in light of the foregoing determinations.