Opinion
102744/2008.
September 9, 2010.
DECISION AND ORDER
The following papers numbered 1 to 7 were used on this motion this 20th day of July, 2010:
Notice of Motion (004) [Defendant Tempco](Affirmation in Support) .... 1 Notice of Motion (005) [Defendants Bonded](Affirmation in Support) ... 2 Notice of Motion (006) [Defendant Hines](Affirmation in Support) ..... 3 Affirmation in Opposition [Plaintiff] ................................ 4 Reply Affirmation Defendant Tempco ................................... 5 Reply Affirmation Defendant Bonded ................................... 6 Reply Affirmation Defendant Hines .................................... 7On March 14, 2006, the plaintiff allegedly sustained injuries when he tripped and fell on an alleged defect located at 158-15 Liberty Avenue, Queens, New York. At the time of the accident the plaintiff was employed in the building and was transporting a liquid nitrogen tank to the loading dock from his laboratory located in the basement of the building. Defendants Hines Consolidated Investments, Inc., Hines Interests Limited Partnership, Hines FDA Queens, Inc., Hines GS Properties, Inc. and FDA Queens, L.P., [hereinafter known collectively as the "Hines Defendants"] were the owners/property managers of the subject premises at the time of the accident. Defendant Bonded Waterproofing Services, Inc., [hereinafter known as "Bonded"] was hired to perform certain waterproofing/installation of french drains in the basement of the premises where the plaintiff worked. Defendant Tempco Service Industries, Inc., [hereinafter known as "Tempco"] was hired to perform maintenance services on the premises.
The proposition that some of the Hines defendants should be released because of their non-involvement to the subject property is rejected by this Court as several questions of fact exist as to the exact owners/property managers of the property.
Specifically, the plaintiff alleges that while transporting the tank of liquid nitrogen in the basement of the premises he tripped and fell over masonite/cardboard. Plaintiff sustained, inter alia, fractures to his hand, fingers and knee. On or about June 24, 2008, the plaintiff commenced this action for personal injuries sustained as a result of defendants' alleged negligence. Presently, discovery has been completed and the defendants are all separately moving for summary judgment seeking to dismiss the complaint as against each of them on the ground that, inter alia, they had neither created nor possessed notice of the alleged hazard that caused plaintiff's fall.
The parties different reference to the material on the floor (i.e., cardboard or masonite) is, within itself, a question of fact and as such, will be referred to as both throughout this motion.
It is well settled that summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of triable issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). The party moving for summary judgment bears the initial burden of establishing its right to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853), and in this regard "the evidence is to be viewed in a light most favorable to the party opposing the motion, giving [it] the benefit of every favorable inference" (Cortale v Educational Testing Serv., 251 AD2d 528, 531 [2d Dept 1998]). Nevertheless, upon a prima facie showing by the moving party, it is incumbent upon the party opposing the motion to produce "evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562).
I. Defendant Tempco's Motion for Summary Judgment
[Motion 004]
Generally `"a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party.' However, [there are] three exceptions to the general rule, pursuant to which `a party who enters into a contract to render services may be said to have assumed a duty of care — and thus be potentially liable in tort — — to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launches 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'" (Foster v. Herbert Slepoy Corp., ___ AD3d ___, NY Slip Op. 5510 [2d Dept, 2010]; Wilson v. Hyatt Corp. 72 AD3d 939, 940-941 [2d Dept., 2010]; Castro v. Maple Run Condominiums Assoc., 41 AD3d 412, 412-413 [2d Dept., 2007]).
Here, the defendant Tempco has established its prima facie entitlement to summary judgment by establishing that plaintiff was not a party to the maintenance contract between it and the Hines defendants and further, establishing that it exercised reasonable care; that plaintiff did not detrimentally rely on its performance and it did not displace the landowners duty to maintain the basement area in a reasonably safe condition (Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562; id.).
In opposition, the plaintiff has failed to raise triable issues of fact (Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562; Wilson v. Hyatt Corp., 72 Ad3d at 940). There is no dispute that the plaintiff was not a party to the contract between defendants Tempco and Hines. Further, the plaintiff has failed to establish that any of the three exceptions enumerated by the Court of Appeals would apply to the instant matter. Plaintiff did not present any evidence to indicate that, (1) defendant Tempco launched a force of harm; (2) that plaintiff detrimentally relied on Tempco's duties; or (3) that Tempco displaced the landowners duty to maintain the premises. In addition, there is no evidence presented that Tempco had any involvement in the installation or continued maintenance (i.e., re-tapping or removing) of the masonite/cardboard, and as such, summary judgment is granted to defendant Tempco.
II. Defendant Bonded's Motion for Summary Judgment
[Motion 005]
"The imposition of liability in a slip-and-fall case requires evidence that the defendants created the dangerous condition which caused the accident, or that they had actual or constructive notice of that condition and failed to remedy it within a reasonable time" (Perlongo v. Park City 3 4 Apts., Inc., 31 AD3d 409, 410 [2d Dept., 2006]). Constructive notice requires that the condition is "visible and apparent and existed for a sufficient length of time before the accident such that it could have been discovered and corrected" (id.).
Here, defendant Bonded has established its prima facie entitlement to summary judgment as a matter of law by producing evidence sufficient to establish that they did not place any cardboard on the basement floor (Alvarez v Prospect Hosp., 68 NY2d 320, 324; Perlongo v. Park City 3 4 Apts., Inc., 31 AD3d 409, 410 [2d Dept., 2006]). In opposition, the plaintiff has raised triable issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). The plaintiff has established that Bonded placed either cardboard or masonite on the floor while performing its contracted work. Questions of fact exist whether defendant Bonded negligently installed the material on the basement floor and therefore cause the plaintiff's accident. These questions require jury resolution and therefore summary judgment is inappropriate.
III. Defendants' Hines Motion for Summary Judgment
[Motion 006]
It is well settled that "an owner of real property has a duty to maintain the property in a reasonably safe condition" (Basso v Miller, 40 NY2d 233, 241). As previously discussed, the plaintiff must present "evidence that the defendants created the dangerous condition which caused the accident, or that they had actual or constructive notice of that condition and failed to remedy it within a reasonable time" (Perlongo v. Park City 3 4 Apts., Inc., 31 AD3d 409, 410 [2d Dept., 2006]). Constructive notice requires that the condition is "visible and apparent and existed for a sufficient length of time before the accident such that it could have been discovered and corrected" (id.).
Here, the Hines defendants have presented sufficient evidence to establish a prima facie entitlement to summary judgment dismissing the complaint as against them (Alvarez v Prospect Hosp., 68 NY2d at 324;Zuckerman v City of New York, 49 NY2d 557, 562; Perlongo v. Park City 3 4 Apts., Inc., 31 AD3d 409, 410 [2d Dept., 2006]). The Hines defendants presented evidence that they did not create the condition as they were not directly involved in the installation of the french drains or placement of material on the floor. Further, the Hines defendants contend they did not possess constructive notice of the condition as no prior accidents/incidents with respect to the masonite/cardboard on the basement floor has previously been reported.
In opposition, the plaintiff has successfully raised triable issues of fact with respect to whether the Hines defendants had constructive notice of the alleged defect (id.). The testimony of Mr. William Gustavson, operating engineer employed by Hines, and Mr. Pat McGovern, property manager also employed by Hines, established that they were aware of the work Bonded was performing and daily inspected the premises with respect to such work. Further, evidence indicates that Hines may have supplied Bonded with the allegedly defectively installed masonite/cardboard. As result, there are questions of fact which exist which require a jury's determination and are inappropriate for summary judgment in favor of the Hines defendants (Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562; Perlongo v. Park City 3 4 Apts., Inc., 31 AD3d 409, 410 [2d Dept., 2006]).
Accordingly, it is
ORDERED that the defendant Tempco's motion for summary judgment is hereby granted and the complaint and all cross claims are hereby dismissed against defendant Tempco only, and it is further ORDERED that the defendant Bonded's motion for summary judgment is hereby denied, and it is further,
ORDERED that the Hines defendants motion for summary judgment is hereby denied, and it is further
ORDERED that any and all additional requests for relief are hereby denied, and it is further
ORDERED that the remaining parties proceed directly to trial, and it is further
ORDERED that the Clerk enter judgment accordingly.
THIS IS THE DECISION AND ORDER OF THE COURT.