Opinion
10-05-2016
Julia A. MAVIS, et al., appellants, v. REXCORP REALTY, LLC, et al., respondents.
John L. Juliano, P.C., East Northport, N.Y., for appellants. Perez & Varvaro, Uniondale, N.Y. (Edgar Matos of counsel), for respondent Rexcorp Realty, LLC. Shearer P.C., Locust Valley, N.Y. (Douglas Shearer of counsel), for respondent A.M.B. Onesource Facilities Services.
John L. Juliano, P.C., East Northport, N.Y., for appellants.
Perez & Varvaro, Uniondale, N.Y. (Edgar Matos of counsel), for respondent Rexcorp Realty, LLC.
Shearer P.C., Locust Valley, N.Y. (Douglas Shearer of counsel), for respondent A.M.B. Onesource Facilities Services.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and COLLEEN D. DUFFY, JJ.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated August 4, 2014, as granted those branches of the separate motions of the defendants, Rexcorp Realty, LLC, and A.M.B. Onesource Facilities Services, which were for summary judgment dismissing the complaint insofar as asserted against each of them.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.
On December 11, 2008, at approximately 9:00 a.m., Julia A. Mavis (hereinafter the injured plaintiff) allegedly was injured when she slipped and fell on the lobby floor of the building where she worked. It had been raining that morning. The injured plaintiff, and her husband suing derivatively, commenced this action against the owner of the building, Rexcorp Realty, LLC (hereinafter the owner), and the contractor hired to clean the common areas of the building, A.M.B. Onesource Facilities Services (hereinafter the contractor). The owner and the contractor separately moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against each of them, and the Supreme Court granted those branches of the motions.
The owner or possessor of property has a duty to maintain his or her property “in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” (Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 [internal quotation marks omitted]; see Walsh v. Super Value, Inc., 76 A.D.3d 371, 375, 904 N.Y.S.2d 121 ). A defendant moving for summary judgment in a slip and fall case has the burden of demonstrating, prima facie, that it did not create the alleged dangerous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837–838, 501 N.Y.S.2d 646, 492 N.E.2d 774 ; Walsh v. Super Value, Inc., 76 A.D.3d at 375, 904 N.Y.S.2d 121 ). A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it (see Walsh v. Super Value, Inc., 76 A.D.3d at 375, 904 N.Y.S.2d 121 ). To meet its initial burden on the issue of lack of constructive notice, the defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall (see James v. Orion Condo–350 W. 42nd St., LLC, 138 A.D.3d 927, 927, 30 N.Y.S.3d 216 ; Mehta v. Stop & Shop Supermarket Co., LLC, 129 A.D.3d 1037, 1038, 12 N.Y.S.3d 269 ). Although submission of evidence as to the defendant's general cleaning practices is generally insufficient to meet the defendant's burden on the issue of lack of constructive notice, specific evidence as to cleaning practices may be adequate, depending on the circumstances of the case (see Armijos v. Vrettos Realty Corp., 106 A.D.3d 847, 847–848, 965 N.Y.S.2d 536 ).
Here, the owner satisfied its prima facie burden through submission of the deposition testimony of an employee of the contractor and the building concierge employed by the owner. The testimony of the building concierge, and the testimony of the contractor's employee regarding the frequency of the employee's inspections of the area where the injured plaintiff fell, established, prima facie, that the owner did not have constructive notice of the allegedly dangerous condition (see id. ). In opposition, the plaintiffs failed to raise a triable issue of fact as to creation or notice. Accordingly, the Supreme Court properly granted that branch of the owner's motion which was for summary judgment dismissing the complaint insofar as asserted against it (see Mehta v. Stop & Shop Supermarket Co., LLC, 129 A.D.3d at 1039, 12 N.Y.S.3d 269 ).
As to the contractor, the general rule is that a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485 ). Although there are exceptions to that rule (see id. at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 ), a contracting defendant moving for summary judgment need negate only those exceptions that were expressly pleaded by the plaintiff or expressly set forth in the bill of particulars (see Barone v. Nickerson, 140 A.D.3d 1100, 1101, 32 N.Y.S.3d 663 ; Foster v. Herbert Slepoy Corp., 76 A.D.3d 210, 214, 905 N.Y.S.2d 226 ). Here, the plaintiffs did not expressly plead or set forth in their bill of particulars any of the recognized exceptions to the general rule. Thus, by establishing that the injured plaintiff was not a party to the cleaning services agreement, the contractor met its prima facie burden of establishing that it owed her no duty (see Parrinello v. Walt Whitman Mall, LLC, 139 A.D.3d 685, 687, 30 N.Y.S.3d 692 ). In opposition to that prima facie showing, the plaintiffs failed to raise a triable issue of fact as to the applicability of an exception to the general rule (see Bryan v. CLK–HP 225 Rabro, LLC, 136 A.D.3d 955, 956, 26 N.Y.S.3d 207 ). Accordingly, the Supreme Court properly granted the branch of the contractor's motion which was for summary judgment dismissing the complaint insofar as asserted against it.