Opinion
552 CA 19-01018
11-13-2020
Mark C. LORQUET and Helen Lorquet, Plaintiffs-Respondents, v. TIMONEY TECHNOLOGY INC., and Devon Facility Management LLC, Defendants-Appellants.
NASH CONNORS, P.C., BUFFALO (JAMES J. NASH OF COUNSEL), FOR DEFENDANT-APPELLANT TIMONEY TECHNOLOGY INC. LAW OFFICES OF JOHN WALLACE, BUFFALO (JAMES J. NAVAGH OF COUNSEL), FOR DEFENDANT-APPELLANT DEVON FACILITY MANAGEMENT LLC. LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
NASH CONNORS, P.C., BUFFALO (JAMES J. NASH OF COUNSEL), FOR DEFENDANT-APPELLANT TIMONEY TECHNOLOGY INC.
LAW OFFICES OF JOHN WALLACE, BUFFALO (JAMES J. NAVAGH OF COUNSEL), FOR DEFENDANT-APPELLANT DEVON FACILITY MANAGEMENT LLC.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: SMITH, J.P., TROUTMAN, WINSLOW, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Mark C. Lorquet (plaintiff) when he slipped and twisted his knee while stepping over a "wind row" of snow in the parking lot at his place of work. Plaintiff's employer had contracted with defendant Devon Facility Management LLC (Devon) for property maintenance services, including snow and ice removal from the parking lot, and Devon subcontracted the snow and ice removal work to defendant Timoney Technology Inc. (Timoney). Timoney moved for summary judgment dismissing the complaint and Devon's cross claims against it, and Devon moved for summary judgment dismissing the complaint against it and, alternatively, for summary judgment on its second cross claim against Timoney, for contractual indemnification. Timoney and Devon now appeal from an order that denied both motions. We affirm.
Contrary to Timoney's contention, Supreme Court properly determined that Timoney failed to meet its initial burden on its motion of establishing that it owed no duty to plaintiff based on a storm in progress at the time of the incident. The evidence submitted by Timoney in support of its motion failed to establish that Timoney's workers did not create or exacerbate the allegedly hazardous condition that caused plaintiff's injuries (see Garrett v. 1030 E. Genesee Co. , 169 A.D.3d 1433, 1433-1434, 91 N.Y.S.3d 764 [4th Dept. 2019] ; DeMonte v. Chestnut Oaks at Chappaqua , 134 A.D.3d 662, 664, 20 N.Y.S.3d 591 [2d Dept. 2015] ; see generally Smith v. United Ref. Co. of Pennsylvania , 148 A.D.3d 1733, 1734, 52 N.Y.S.3d 757 [4th Dept. 2017] ). Timoney's representative testified at his deposition that Timoney did not keep records or time sheets establishing what work was done, or by whom, on a particular day, and thus Timoney could not offer any evidence that its workers did not engage in snowplowing efforts on the day in question or, if they did so, that they kept the parking lot free of wind rows, as required by the subcontract (see generally Rak v. Country Fair, Inc. , 38 A.D.3d 1240, 1241, 831 N.Y.S.2d 794 [4th Dept. 2007] ).
Timoney likewise failed to meet its burden of establishing that it owed no duty of care to plaintiff on the ground that plaintiff is not a party to the subcontract. "As a general rule, a contractual obligation, standing alone, does not give rise to tort liability in favor of a third party" ( Grove v. Cornell Univ. , 151 A.D.3d 1813, 1815, 54 N.Y.S.3d 260 [4th Dept. 2017] ). Timoney asserted that none of the Espinal exceptions to that general rule applies (see generally Espinal v. Melville Snow Contrs. , 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ), but it is well settled that a contractor who creates or exacerbates a hazardous snow condition by plowing may be held liable to a third party under the first Espinal exception, for launching a force or instrument of harm (see Chamberlain v. Church of the Holy Family , 160 A.D.3d 1399, 1403, 75 N.Y.S.3d 718 [4th Dept. 2018] ; Meyers-Kraft v. Keem , 64 A.D.3d 1172, 1173-1174, 883 N.Y.S.2d 838 [4th Dept. 2009] ; Rak , 38 A.D.3d at 1241, 831 N.Y.S.2d 794 ). In light of Timoney's failure to meet its initial burden, we do not examine the sufficiency of the plaintiffs' opposing submissions (see Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ; Rak , 38 A.D.3d at 1241-1242, 831 N.Y.S.2d 794 ).
Contrary to Timoney's further contention, the court properly denied that part of its motion seeking summary judgment dismissing Devon's cross claim for contractual indemnification. Timoney and Devon agree that the indemnification provision in the subcontract provides that Timoney will indemnify Devon for any claim or injury stemming from Timoney's snowplowing work, even if the claim or injury was partially caused by Devon's negligence. Timoney therefore has no contractual obligation to indemnify Devon for any claim or injury that is solely attributable to Devon's negligence. We agree with the court that Timoney failed to establish that its own negligence was not a cause of the accident, and thus that Timoney failed to establish as a matter of law that plaintiff's injuries were solely attributable to Devon's negligence (see generally Chamberlain , 160 A.D.3d at 1403-1404, 75 N.Y.S.3d 718 ).
Contrary to Devon's contention on its appeal, the court properly determined that Devon is not entitled to summary judgment dismissing the complaint against it. Devon contends that it is entitled to summary judgment because it owed no duty of care to plaintiff, and its subcontract with Timoney did not give rise to such a duty. Although "[t]he general rule in New York is that a party who retains an independent contractor is not liable for the independent contractor's negligent acts" ( Tschetter v. Sam Longs' Landscaping, Inc. , 156 A.D.3d 1346, 1347, 68 N.Y.S.3d 292 [4th Dept. 2017], citing Kleeman v. Rheingold , 81 N.Y.2d 270, 273-274, 598 N.Y.S.2d 149, 614 N.E.2d 712 [1993] ), there is an exception to that rule where there has been negligent supervision on the part of the hiring party (see Wendt v. Bent Pyramid Prods., LLC , 108 A.D.3d 1032, 1033, 970 N.Y.S.2d 138 [4th Dept. 2013] ). Thus, while "the mere retention of general supervisory powers over an independent contractor cannot form a basis for the imposition of liability against the principal" ( Goodwin v. Comcast Corp. , 42 A.D.3d 322, 323, 840 N.Y.S.2d 781 [1st Dept. 2007] ; see Wendt , 108 A.D.3d at 1033, 970 N.Y.S.2d 138 ), here, we conclude that there is a question of fact whether Devon's alleged negligence in supervision goes beyond general supervisory authority. Devon's subcontract with Timoney expressly prohibited snow being piled in wind rows in walkways or parking lots, and that directive is also present in the contract between plaintiff's employer and Devon. And yet, contrary to the terms of the contract and subcontract, Devon's representative testified that the practice of creating wind rows was permissible inasmuch as Devon did not expect Timoney to clear the wind rows that were generated against the parked cars when Timoney plowed the driving lanes. The testimony of Devon's representative establishes that Devon affirmatively approved the existence of the wind rows, i.e., the hazardous condition that injured plaintiff, despite the fact that they were contractually prohibited. We cannot conclude, therefore, that Devon established that it had " ‘no right to control the manner’ " in which the work that created the wind rows was done ( Brothers v. New York State Elec. & Gas Corp. , 11 N.Y.3d 251, 257, 869 N.Y.S.2d 356, 898 N.E.2d 539 [2008], quoting Kleeman , 81 N.Y.2d at 274, 598 N.Y.S.2d 149, 614 N.E.2d 712 ).
We also conclude that the court properly denied that part of Devon's motion seeking summary judgment on its cross claim for contractual indemnification inasmuch as Devon failed to establish as a matter of law that plaintiff's injuries are attributable to negligence by Timoney (see generally Winegrad , 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ). Indeed, there is no evidence in the record how or when the wind row on which plaintiff was injured was created, and any inference whether Timoney was responsible for creating the wind row is one to be made by a factfinder (see generally Schneider v. Kings Hwy. Hosp. Ctr. , 67 N.Y.2d 743, 744, 500 N.Y.S.2d 95, 490 N.E.2d 1221 [1986] ; Seelinger v. Town of Middletown , 79 A.D.3d 1227, 1229-1230, 913 N.Y.S.2d 376 [3d Dept. 2010] ; Schuster v. Dukarm , 38 A.D.3d 1358, 1359, 831 N.Y.S.2d 619 [4th Dept. 2007] ).
We have examined defendants' remaining contentions and conclude that none warrants modification or reversal of the order.