Opinion
Index 20181524
11-23-2020
CARRIE SEAMAN, Plaintiff, v. NEW YORK RACING AUTHORITY, INC., STONE INDUSTRIES, LLC and TOWNSQUARE MEDIA, Defendants. RJI No. 45-1-2018-1635
Matthew A. Toporowski, .Esq. The Wagoner Firm, PLLG Attorney for Plaintiff Albany, NewYork Michael J~ Murphy, Esq. Barclay Damon LLP Attorney for Defendant NYRA1 Inc. Albany, New York AndrewJ. Wells, Esq. SegalMcCambridge Singer & Maloney Attorney for Defendant Townsquare Media, Inc, NewYork, New York Derek Hayden, Esq. Law Offices of M. Randolph Belkin Attorney for Defendant Stone Industries Latham, New York
Unpublished Opinion
Matthew A. Toporowski, .Esq. The Wagoner Firm, PLLG Attorney for Plaintiff Albany, NewYork
Michael J~ Murphy, Esq. Barclay Damon LLP Attorney for Defendant NYRA1 Inc. Albany, New York
AndrewJ. Wells, Esq. SegalMcCambridge Singer & Maloney Attorney for Defendant Townsquare Media, Inc, NewYork, New York
Derek Hayden, Esq. Law Offices of M. Randolph Belkin Attorney for Defendant Stone Industries Latham, New York
DECISION & ORDER
HON. DIANNE N.FREESTONE SUPREME COURT JUSTICE
Plaintiff Carrie Seaman (hereinafter individually referred to as "plaintiff") commenced this personal injury action on May 15, 2018 by filing a summons and complaint in the Saratoga County Clerk's Office. Thereafter, defendant New York Racing Authority, Inc. (hereinafter "NYRA") served an answer to the complaint, which interposed ten affirmative defenses, two cross claims against defendant Stone Industries, LLC (hereinafter "Stone"), and two cross claims against defendant Townsquare Media, Inc. (hereinafter "Townsquare"). On or about June 14, 2018, Stone answered the complaint and asserted eight affirmative defenses and interposed a cross claim against NYRA and Townsquare. Subsequently, on or about August 10, 2018, Townsquare served an answer to the complaint and interposed various affirmative defenses and cross claims.
It is worth noting that, on or about January 2, 2020, this matter was reassigned from the Hon. Thomas D. Nolan, Jr. to this Court pursuant to the directives of the Administrative Judge.
At approximately 7:00 p.m. on September 30, 2017, while attending the Saratoga Harvest Festival at the Saratoga Race Course located in the City of Saratoga, County of Saratoga, plaintiff allegedly tripped and fell over a metal tent stake and collided with a portable toilet situated on a cement slab. NYRA is the lessee and operator of the Saratoga Race Course. On or about January 4, 2017, Townsquare entered into a license agreement with NYRA to hold, among other events, the Saratoga Harvest Festival at the Saratoga Race Course on September 30, 2017. Townsquare entered into a rental contract and lease agreement with Stone for portable toilets for said event. Plaintiff brought this action against defendants seeking damages for her injuries. Plaintiff contends that "defendants knew or should have known that the tent tie-down was a dangerous condition and should have taken reasonable precautions to prevent injuries to individuals they expected to use the portable] [toilets] next to the tent tie-downs at Harvest Fest 2017."
Following joinder of issue and discovery, by notice of motion dated August 13, 2020, NYRA moved for summary judgment pursuant to CPLR 3212 on its cross claims against Townsquare (see NYSCEF Document Nos. 3 through 23). By notice of motion dated August 14, 2020, plaintiff moved for partial summary judgment on the issue of liability against defendants (see NYSCEF Document Nos. 25 through 46). By notice of motion dated August 12, 2020, Stone moved for summary judgment: dismissing plaintiffs complaint and for an order granting contractual indemnification against Townsquare (see NYSCEF Document Nos. 47 through 68). NYRA opposed plaintiff s motion by Affidavit dated September 10, 2020 and supporting exhibits A through F (see NYSCEF Document Nos. 69 through 77). Stone opposed plaintiff s motion for summary judgment by affirmation dated September 10, 2020 (see NYSCEF Document No. 78), Townsquare opposed NYRA's motion for summary judgment by affirmation dated September 11, 2020 and annexed exhibits A through K (see NYSCEF Document Nos. 79 through 90). Townsquare opposed plaintiffs motion by affirmation dated September 11, 2020 and supporting exhibits A through K (see NYSCEF Document Nos. 91 through 102). On September 30, 2020, NYRA submitted a reply affidavit (see NYSCEF Document No. 104)., On September 30, 2020, plaintiff submitted two separate reply affirmations with supporting exhibits (see NYSCEF Document Nos. 105 through 139). On October 14, 2020, Townsquare submitted an affirmation in opposition to Stone's motion for summary judgment with supporting exhibits A through K (see NYSCEF Document Nos. 147 through 158), On October 22, 2020, Stone submitted a reply affirmation (see NYSCEF Document Nos. 159-160). On October 27, 2020, the Court afforded the parties an opportunity to virtually argue their respective motions and to address any of the issues contained within said papers.
The proponent of a summary judgment motion is obligated to make a prima facie showing of entitlement to judgment as a matter of law by tendering admissible evidence demonstrating the absence of a material question of fact (see Alvarez v Prospect Hosp.. 68 N.Y.2d 320, 324 [1986]; Pullman v Silverman. 28, NY3d 1060, 1062 [2016]; Andrew R. Mancini Associates, Inc. v. Mary Imogene Bassett Hosp.. 80 A.D.3d 933, 935 [3d Dept 2011]; Smith v Allen. 124 A.D.3d 1128 [3d Dept 2015]; Freitag v Village of Potsdam. 155 A.D.3d 1227, 1229 [3d Dept 2017]). If the moving party meets its initial burden, the burden then shifts to the nonmoving party to produce evidence sufficient to demonstrate a material issue of fact to avoid summary judgment (see Zuckerman v City of New York. 49 N.Y.2d 557, 562 [1980]; Stonehill Capital Met.. LLC v Bank of the W.. 28 NY3d 439, 448 [20161: U.W. Marx. Inc. v Koko Contr. Inc.. 97 A.D.3d 893, 894 [3d Dept 2012]; Hicks v Berkshire Farm Ctr. & Servs. for Youth. 123 A.D.3d 1319 [3d Dept 2014]). It is well settled that a court reviewing a motion for summary judgment must view the evidence in the light most favorable to the nonmoving party (see Vega v Restani Constr. Corp.. 18 N.Y.3d 499, 503 [2012]; Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP. 26 N.Y.3d 40, 49 [2015]; Winne v Town of Duanesburg. 86 A.D.3d 779, 780 [3d Dept 2011]; Marra v Hughes. 123 A.D.3d 1307 [3d Dept 2014]). A court '"may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned'" (Rock-Wright v O'Connor, 172 A.D.3d 1507, 1509 [3d Dept 2019]. quoting Glick & Dolleck v Tri-Pac Export Corp.. 22 N.Y.2d 439, 441 [1968]).
First, with regard to plaintiff's motion seeking partial summary judgment on the issue of liability against defendants, "[i]n order to prevail in any action premised upon negligence, it must be established that defendants] owed plaintiff a duty, that defendants], by act or omission, breached such duty, that such breach was the proximate cause of plaintiff s injuries, and that plaintiff sustained damages" (Salvador v New York Botanical Garden, 71 A.D.3d 422, 423 [1st Dept 2010]; see Katz v United Synagogue of Conservative Judaism. 135 A.D.3d 458, 459 [1st Dept 2016]). Generally, "[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" (Chang v Marmon Enterprises. Inc.. 172 A.D.3d 678, 678 [2d Dept 2019]). In order to establish a prima facie case of negligence involving defective or dangerous conditions on property, "[i]t is well settled that a plaintiff in a trip and fall case must demonstrate that the defendant either created the dangerous condition which caused the accident, or that the defendant had actual or constructive notice of the condition and failed to remedy it in a reasonable time" (Q'Hanlon v Bodouva. 251 A.D.2d 474, 474 [2d Dept 1998]; see Haseley v Abels, 84 A.D.3d 480, 482 [1st Dept 2011]). "Whether a dangerous or defective condition exists on the property of another so as to create liability depends on the . circumstances of each case, and is generally a question of fact for the jury" (Davis v Sutton, 136 A.D.3d 731, 733 [2d Dept 2016]: see Wiedenbeck v Lawrence, 170 A.D.3d 1669, 1669 [4th Dept 2019]). Furthermore, "[t]he issue of proximate cause is ordinarily a question of fact for a jury to resolve" (Reed v New York State Elec. & Gas Corp., 183 A.D.3d 1207, 1211 [3d Dept 2020][internal quotation marks and citation omitted]; see O'Keefe v Wohl, 184 A.D.3d 1046, 1047 [3d Dept 2020]).
In support of its motion for summary judgment, plaintiff proffered, inter alia, the pleadings, deposition testimony and numerous exhibits (see NYSCEF Doc. .26 through 45), Plaintiff maintains that NYRA and Townsquare owed plaintiff a duty of care, that NYRA and Townsquare had actual and/or constructive notice, of the dangerous condition and that they had failed to remedy said condition despite having sufficient time to do so. Plaintiff relies, in part, on the case of Deluca v Cachet Mat. LLC. (2019 NY Slip Op. 32541 [U] [Sup Ct, New York County 2019]) in support of her claim that she is entitled to summary judgment on the issue of liability. However, unlike the case of Deluca v Cachet Met. LLC. (2019 NY Slip Op.32541[U] [Sup Ct, New York County 2019]) there were no known witnesses to the subject accident and defendants have not been precluded from offering evidence herein. It is well settled, that negligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination" (Davis v Commack Hotel. LLC. 174 A.D.3d 501, 502 [2d Dept 2019], quoting Uearriza v Schmieden 46 N.Y.2d 471, 474 [19791: see Hyatt v Messana, 67 A.D.3d 1400, 1401 [4th Dept 2009]). Consequently, a "plaintiff in a negligence action 'will generally be entitled to summary judgment only in cases in which there is no conflict at all in the evidence, the defendant's conduct fell far below any permissible standard of due care, and the plaintiffs conduct either was not really involved ... or was clearly of exemplary prudence in the circumstances'" (Chilberg v Chilbere, 13 A.D.3d 1089, 1090 [4th Dept 2004], quoting Andre v Pomerov, 35 N.Y.2d 361, 364-365 [4th Dept 2004]; see DeCosmo v Hulse, 204 A.D.2d 953, 954 [3d Dept 1994]). Here, viewing the evidence in the light most favorable to defendants as the nonmoving parties, the Court finds that the extensive record before it contains conflicting accounts as well as triable issues of fact and credibility that are more appropriate for a jury to resolve. "[I]nasmuch as there are issues of fact with respect to defendants' negligence," the Court finds that plaintiffs motion seeking partial summary judgment on the issue of liability must be denied (Meech v Anthony, 179 A.D.3d 1555, 1557 [4th Dept 2020]).
Next, there has been no opposition to Stone's motion to dismiss plaintiffs complaint. Accordingly, Stone's motion for summary judgment dismissing the complaint is hereby granted, without costs. Turning to the remaining portion of Stone's motion for summary judgment seeking contractual indemnification against Townsquare, Stone contends that, pursuant to the rental agreement obligations, Townsquare should indemnify and hold Stone harmless herein.
"Indemnification is the right to complete reimbursement for a liability imposed by law" (1 Warren's Negligence in the New York Courts § 8.01 [2020]). "A right of indemnification may be created by an express agreement between the parties, or it may arise by operation of law as an, implied, or common law, right to indemnity" (Id.). "[A] party's right to contractual indemnification depends upon the specific language of the relevant contract" (Morris v Home Depot USA. 152 A.D.3d 669, 672 [2d Dept 2017]). "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 facts and circumstances" (Bleich v Metropolitan Mgt. LLC. 132 A.D.3d 933, 934 [2d Dept 2015]). Paragraph 10 of the Lease Agreement entitled "INDEMNITY" states that
"[Townsquare] shall indemnify [Stone] against, and hold [Stone] harmless for all claims, actions, proceedings, damages and liabilities, including attorney's fees, arising from or connected with [Townsquare's] possession and use of toilets."
The Court finds that there is a question as to whether plaintiffs claim "arose from or [was] connected with [Townsquare's] possession and use" of the portable toilets (see generally Hannigan v Staples. Inc., 137 A.D.3d 1546, 1550 [3d Dept 2016]). Therefore, Stone's motion for contractual indemnification is denied, without prejudice to renew ("see generally State of New York v Travelers Prop. Cas. Ins. Co.. 280 A.D.2d 756, 758 [3d Dept 2001]).
Finally, turning to NYRA's motion for summary judgment on its cross claims against Townsquare. NYRA seeks summary judgment for contractual and common law indemnification. Paragraph 10 of the License Agreement dated January 4, 2017 provides that
[Townsquare] agrees to indemnify and defend NYRA and its directors, officers, employees, agents, contractors, and servants against, and to hold all of them harmless from and against, any liability, actions, judgment, costs, suits, claims, or expenses (including without limitation attorneys' fees and costs), losses, injuries (including death), or damages caused by [Townsquare], or which result as a consequence of a breach of this Agreement by [Townsquare], or any condition created, caused, or permitted by [Townsquare], its employees, agents, contractors, clients, patrons, servants, or invitees.
[Townsquare] agrees to use its best efforts to prevent damage to [NYRA's] Premises and property, and will indemnify, reimburse and make [NYRA] whole, and all other parties lawfully upon or in possession of said Premises or property, for injuries to persons or animals, death, or property damage suffered or incurred as a result of [Townsquare's] operations or as a result of [Townsquare's] breach of this Agreement or any condition created, caused, or permitted by [Townsquare], its employees, agents, contractors, clients, patrons, guests, event participants, and other invitees. NYRA shall have the right to defend any actions giving rise to defense and indemnity with counsel of its choosing. This section is intended to be as broad and inclusive as permitted by the laws of the State of New York, it being the intention of the Parties that these provisions shall survive any revocation or cancellation of the License granted herein."
Similar to Stone's motion for contractual indemnification, the Court finds that;there is at least a question as to whether plaintiffs injuries were caused by "any condition created, caused, or permitted by [Townsquare], [or] its employees ..." (Darien Lake Theme Park and Camping Resort. Inc. v Contour Erection & Siding Svs., Inc.. 16 A.D.3d 1055, 1055 [4th Dept 2005]). "Moreover, unless [NYRA] is found to be free from negligence - a determination that cannot be made at this juncture - conditional summary judgment for, ., common-law indemnification is premature" (Hannigan v Staples. Inc., 137 A.D.3d at 1550 [3d Dept 2016]: see Lopez v New York Life Ins. Co.. 90 A.D.3d 446, 448 [1st Dept 2011]; George v Marshalls of MA. Inc.. 61 A.D.3d 925, 931 [2nd Dept 20091; see generally State of New York v Travelers Prop. Cas. Ins. Co.. 280 A.D.2d at 758 [3d Dept 2001]).
Based on the foregoing. Stone's motion for summary judgment is granted, in part, to the extent that plaintiffs complaint is dismissed as it relates to Stone, without costs. Plaintiffs motion for partial summary judgment as to liability is denied, without costs. Finally, NYRA's motion for summary judgment is denied, without costs.
The foregoing constitutes the Decision and Order of the Court. The Court is hereby uploading the original Decision and Order in to the NYSCEF system for filing and entry by the County Clerk. Counsel is still responsible for serving notice of entry of this Decision and Order in accordance with the Local Protocols for Electronic Filing for Saratoga County.