Opinion
Index No. 608576/2018 CAL. No. 202000653OT Mot. Seq. Nos. 002 MD003 MD 004 MD
03-10-2021
SHAWN URON, Plaintiff, v. GRI SUNSET PLAZA, LLC, KE MANAGEMENT LLC, POWERHOUSE PAVPWG & DRAINAGE, LLC AND ADVANCED PAVEMENT GROUP CORP. d/b/a POWERHOUSE PAVING, Defendants.
GRUENBERG KELLY DELLA Attorney for Plaintiff FRANK A. POLACCO & ASSOCIATES Attorney for Defendants GRI Sunset Plaza AHMUTY DEMERS & MCMANUS Attorney for Defendant KE Management VICTOR J. NATALE, ESQ. Attorney for Defendant
Unpublished Opinion
MOTION DATE 10/14/2020
MOTION DATE 12/3/2020
ADJ. DATE 12/17/2020
GRUENBERG KELLY DELLA Attorney for Plaintiff
FRANK A. POLACCO & ASSOCIATES Attorney for Defendants GRI Sunset Plaza
AHMUTY DEMERS & MCMANUS Attorney for Defendant KE Management
VICTOR J. NATALE, ESQ. Attorney for Defendant
PRESENT: Hon. JOSEPH FARNET1, Acting Justice of the Supreme Court
SHORT FORM ORDER
Joseph Farneti, Judge
Upon the following papers read on these e-filed motions for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by defendant/third GRI Sunset Plaza dated September 14, 2020, by defendant/third-party defendant Advanced Pavement dated October 28, 2020. and by defendant KE Management, LLC, dated November 18, 2020; Notice of Cross Motion and supporting papers ___; Answering Affidavits and supporting papers by defendant Advanced Pavement dated October I, 2020, by plaintiff dated October 7, 2020, by defendant/third-party plaintiff GR! Sunset Plaza dated November 5, 2020, by plaintiff dated January 21, 2021, by GRI Sunset Plaza dated November 23, 2020, by defendant/ third-party defendant Advanced Pavement dated December 9. 2020. by plaintiff dated January 21. 2021; Replying Affidavits and supporting papers by defendant/third-party plaintiff GRI Sunset Plaza dated October 7, 2020, by defendant/third-party defendant Advanced Pavement dated November 20. 2020, by defendant/third-party defendant Advanced Pavement dated January 27, 2021, by defendant KE Management, LLC. dated January 26, 2021, by defendant/third-party plaintiff GRI Sunset Plaza dated January 26. 2021 ___; Other Memoranda of Law ___; it is,
ORDERED that the motion (002) by defendant/third-party plaintiff GRI Sunset Plaza, LLC, the motion (003) by defendant/third-party defendant Advanced Pavement Group Corp., and the motion (004) by defendant KE Management, LLC, are consolidated for the purposes of this determination; and it is
ORDERED
that the motion by defendant/third-party plaintiff GRI Sunset Plaza, LLC for, inter alia. summary judgment on its third-party complaint is denied; and it is
ORDERED that the motion by defendant/third-party defendant Advanced Pavement Group Corp. for, inter alia, summary judgment dismissing the complaint and the cross claims against it is denied; and it is
ORDERED
that the motion by defendant KE Management, LLC for, inter alia, summary judgment dismissing the complaint against it is denied.
This is an action to recover damages for injuries allegedly sustained by plaintiff, Shawn Uron, on January 18, 2018, as a result of a slip and fall that occurred in the parking lot of the Sunset Plaza Shopping Center Union Bank located in North Babylon, New York. The accident allegedly occurred when plaintiffs left foot slipped on black ice as he stepped from the running board of his vehicle onto to the asphalt surface of the parking lot. As a result, plaintiff allegedly fell from the open door of his vehicle, landed on his right shoulder and left arm, and settled on to his stomach. Defendant/third-party plaintiff GRI Sunset Plaza, LLC ("GRI"), is the owner of the parking lot. Prior to the accident, GRI retained defendant/third-party defendant Powerhouse Paving & Drainage, LLC, and Advanced Pavement Group Corp. d/b/a Powerhouse Paving ("Advanced Pavement ") to perform snow and ice removal services at the parking lot. Defendant KE Management, LLC ("KE"), the property manager for the premises, was also named as a defendant to the action. By way of his amended complaint, plaintiff alleges, inter alia, that defendants' were negligent in their ownership, control, and maintenance of the subject parking lot, and that they caused or created the hazardous condition on which he slipped by improperly clearing and removing snow and ice therefrom.
Defendants joined issue denying plaintiff claims and asserting affirmative defenses and cross claims against each other. Thereafter, GRI commenced a third-party action for indemnification and contribution against Advanced Pavement. GRI now moves for summary judgment on its third-party complaint, arguing that plaintiff injuries were solely caused by Advanced Pavement's failure to adequately remove snow and ice from the subject parking lot, and that Advanced Pavement is contractually obligated to indemnify and defend it against plaintiffs claims. In addition, GRI asserts that Advanced Pavement breached the provision of the snow removal services agreement requiring it to procure general liability insurance naming GRI as a beneficiary thereto. Advanced Pavement opposes GRI's motion on the basis triable issues exist as to whether GRI's agent, KE, participated in determining where snow was piled or relocated and, if so, whether the accident was caused by the negligence of GRI's employees and not any act or omission by Advanced Pavement. Advanced Pavement further avers that it did procure insurance on GRI's behalf, and that it was not contractually obligated to reimburse GRI's costs and attorneys' fees under the terms of the snow removal services agreement. Plaintiff opposes GRI's motion only to the extent it prejudices his negligence claims against defendants.
By way of a separate motion, Advanced Pavement moves for summary judgment dismissing the complaint and cross claims against it. Advanced Pavement argues that it did not owe plaintiff a duty of care, that no evidence exists that plaintiff detrimentally relied on the performance of its work, and that its snow removal efforts neither displaced GRI's responsibilities as owner of the parking lot nor launched the force or instrument of harm that caused the accident. GRI opposes the motion on the ground a triable issue exists as to whether Advanced Pavement's snow removal efforts - making piles of snow in the parking lot which melted and re-froze - launched the force or instrument of harm which caused plaintiffs accident. GRI further contends a triable issue exists as whether its duty to maintain the parking lot was completely displaced by the exclusive and comprehensive contractual obligations to remove snow and ice assumed by Advanced Pavement and, if so, whether such assumption created a duty running from Advanced Pavement to plaintiff. Relying on the arguments set forth in its own motion for summary judgment on its third-party claims, GRI also opposes the branch of Advanced Pavement's motion seeking dismissal of the cross claims against it. Plaintiff opposes Advanced Pavement's motion on similar basis, arguing, among other things, that Advanced Pavement failed to eliminate triable issues as to whether its snow removal agreement with GRI was so comprehensive and exclusive that it displaced GRI's proprietary duty to remove snow and ice from the parking lot and, if so, whether such efforts launched the force or instrument of harm that caused the accident.
KE opposes Advanced Pavement's motion on similar bases and moves for summary judgment dismissing the complaint and the cross claims against it. KE argues that it owed plaintiff no duty of care, since it neither owned the subject parking lot nor was obligated to remove snow or ice from its surface. Additionally, KE avers that it merely served as the property manager for the premises, and that its property management duties did not displace GRI's responsibilities for the maintenance of the subject parking lot or launch the force or instrument of harm that caused plaintiffs accident. KE adds that plaintiff, who did not know of the existence of the snow and ice removal agreement, could not have detrimentally relied on the performance of KE's contractual duties. Further, KE avers that it is entitled to contractual and common law indemnification as against Advanced Paving, as it is an intended beneficiary of the indemnification provision contained in the snow and ice removal services agreement, and the adduced evidence reveals that Advanced Paving's negligence was the sole cause of plaintiff s accident. Like GRI. KE also contends that Advanced Paving failed to procure insurance on its behalf.
GRI partially opposes KE's motion to the extent that it seeks dismissal of the complaint and the cross claims against it, arguing that triable issues exist as to whether KE was contractually required to inspect and ensure that the snow and ice removal services were adequately performed by Advanced Paving and, if so, whether such obligation entirely displaced GRI's responsibility to maintain the subject parking lot. GRI contends that KE's failure in this regard, and its failure to procure liability insurance on GRI's behalf, constitutes a breach of its contractual obligations. Additionally, GRI asserts that its contractual indemnification cross claim against KE should not be dismissed, inasmuch as triable issues exist as to whether KE's negligent acts or omissions caused plaintiffs accident. Advanced Pavement opposes KE's motion on the grounds it failed to submit any evidence, such as meteorological data, to substantiate its conclusory claim that the ice which caused the accident emanated from a nearby snow pile, or that it possessed actual or constructive notice of the purported black ice on which plaintiff slipped. Additionally, Advanced Pavement asserts that as KE failed to show that its acts or omissions were the cause of the accident, the branches of its motion for contractual and/or common law indemnification must be denied. Advance Pavement also submitted a copy of its insurance certificates in support of its assertion that it fulfilled its contractual obligations to procure insurance on KE's behalf.
Plaintiff also opposes KE's motion on the grounds triable issues exist as to whether KE's contractual obligation to inspect and approve Advanced Paving's snow removal services are so comprehensive and exclusive that it entirely displaced GRI's proprietary duty to maintain the subject parking lot. Plaintiff further asserts that KE failed to meet its burden of demonstrating when it last inspected the parking lot prior to the accident, and that it lacked constructive notice of the alleged dangerous condition.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]; Andre v Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 [1974]). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316 [1985)). If the moving party produces the requisite evidence, the burden then shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action (see Vega v Restani Constr. Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13 [2012]; Zuckerman v New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue (see O'Brien v Port Auth. of New York & New Jersey, 29 N.Y.3d 27, 52 N.Y.S.3d 68 [2017]). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (see Ortiz v Varsity Holdings, LLC, 18 N.Y.3d 335, 339, 937 N.Y.S.2d 157 [2011]).
A plaintiff seeking damages for personal injuries in a premises liability action must first establish, as a matter of law, that the defendant or defendants owed him or her a duty of reasonable care in maintaining the property (see Rivera v Nelson Realty, LLC, 7 N.Y.3d 530, 534, 825 N.Y.S.2d 422, 424 [2006]; Tagle v Jakob, 97 N.Y.2d 165, 168, 737 N.Y.S.2d 331, 333 [2001]). Without this duty of reasonable care on the part of a defendant, there can be no breach of such duty and, therefore, no proximate cause of plaintiffs injuries as a result of the breach (see Conneally v Diocese of Rockville Ctr., 116 A.D.3d 905, 984 N.Y.S.2d 127 [2d Dept 2014]; Ortega v Liberty Holdings, LLC, 111 A.D.3d 904, 976 N.Y.S.2d 147 [2d Dept 2013]). In the case of a snow removal contractor, ''[a] limited contractual undertaking to provide snow removal services generally does not render the contractor liable in tort for the personal injuries of third parties" (Yvars v Marble Hgts. of Westchester, Inc., 158 A.D.3d 850, 850-851, quoting Baratta v Home Depot USA, 303 A.D.2d 434, 434). However, there are "three situations in 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" (Espinal v Melville Snow Contrs., 98 N.Y.2d 136, 140 [internal quotation marks and citations omitted]).
Although Advanced Pavement established that plaintiff did not detrimentally rely on the performance of its services (see Castro v Maple Run Condominium Assn., 41 A.D.3d 412, 837 N.Y.S.2d 729 [2d Dept 2007] [a plaintiff could not detrimentally rely on the contractor where he had no knowledge of the snow removal agreement]), and that its contractual obligations did not displace GRI's proprietary duties (see Waters v Ciminelli Dev. Co., Inc., 147 A.D.3d 1396, 46 N.Y.S.3d 756 [4th Dept 2017] [owner's proprietary duty not displaced where its agent monitored snow removal performance]; Foster v Herbert Slepoy Corp., 76 A.D.3d 210, 905 N.Y.S.2d 226 [2d Dept 2010]), Advanced Pavement's own submissions failed to eliminate significant triable issues from the case as to whether its snow removal efforts launched the force or instrument of harm that caused plaintiffs accident (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851,487 N.Y.S.2d 316). Significantly, Advanced Pavement did not submit any climatological data or expert evidence contradicting plaintiffs assertion that the black ice on which he slipped was created when snow from the snow pile melted and re-froze on the asphalt next to his vehicle. Advanced Pavement's mere application of salt to the asphalt approximately 11 hours before the accident does not negate plaintiffs allegation. Instead, Advanced Pavement's own submissions includes evidence that its snow removal efforts resulted in the creation of the snow pile in question. Further, Advanced Pavement's submissions included plaintiffs testimony that the ice trailed underneath the full width of his vehicle into the neighboring parking spot, and that while some of it was visible, the portion of ice he slipped on was transparent. Where, as in this case, it is alleged that a defendant negligently created a dangerous condition by failing to remove snow piles and permitting it to melt, re-freeze, and form ice, it is incumbent upon the moving defendant to affirmatively disprove these allegations as part of his summary judgment burden (see Jubie v Emerson Mgt. Enters., LLC, 189 A.D.3d 2030, ___ N.Y.S.2d ___ [3d Dept 2020]; Vogle v North Country Prop. Mgt., LLC, 170 A.D.3d 1491. 97 N.Y.S.3d 335 [3d Dept 2020]; Yvars v Marble Hgts. of Westchester, Inc., 158 A.D.3d 850, 73 N.Y.S.3d 246 [2d Dept 2018]; Rubistello v Bartolini Landscaping, Inc., 87 A.D.3d 1003, 929 N.Y.S.2d 298 [2d Dept 2011]; Prenderville v Int'l Serv. Sys., 10 A.D.3d 334, 781 N.Y.S.2d 110 [1st Dept 2004]). As, Advanced Pavement failed to do so, the branch of its motion seeking dismissal of the complaint against it is denied.
As to the branch of Advanced Pavement's motion seeking dismissal of the cross claims against it, the service agreement between Advanced and GRI provides in relevant part, as follows:
Contractor shall indemnify Owner, its agent and employees against all liability or loss and against all claims or actions based upon or arising out of or based upon any (i) damages or injury (including death) to persons or property, caused by the acts or omissions of the Contractor, its agents or employees in connection with the performance of this Agreement; (ii) violation of any statute, ordinance, building code or regulation, and the defense of any such claims or actions; or (iii) contractor's
breach of this Agreement. Contractor shall bear all responsibility for any equipment owned or rented by Contractor, or for any material to be used by Contractor, in the performance of its obligation under this Agreement, until such equipment and material i installed and accepted by Owner or its agents . . . Nothing contained in this paragraph shall relieve Contractor from responsibility to Owner for Contractor's negligence.
The right to contractual indemnification "depends upon the specific language of the contract, [and] [t]he 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" (Shaughnessy v Huntington Hosp. Assn., 147 A.D.3d 994, 999-1000, 47 N.Y.S.3d 121 [2d Dept 2017]; see Castillo v Port Auth. of New York & New Jersey, 159 A.D.3d 792, 72 N.Y.S.3d 582 [2d Dept 2018]). "A party's right to indemnification may arise from a contract or may be implied based upon the law's notion of what is fair and proper as between the parties. Implied, or common law, indemnity is a restitution concept which permits shifting the loss because to fail to do so would result in the unjust enrichment of one party at the expense of the other. Common law indemnification is generally available in favor of one who is held responsible solely by operation of law because of his relation to the actual wrongdoer" (McCarthy v Turner Constr., Inc., 17 N.Y.3d 369, 374-375, 929 N.Y.S.2d 556 [2011]).
Here, Advanced Pavement failed to establish its entitlement to dismissal of the contractual and common law indemnification claims against it, as it failed to eliminate triable issues from the case as to whether the alleged dangerous condition arose out acts or omissions connected to its snow removal efforts and, if so, whether its is obligated to indemnify GR1 and its agents for plaintiffs injuries (see McCarthy v Turner Constr., Inc., 17 N.Y.3d 369, 929 N.Y.S.2d 556; DeJesus v 888 Seventh Ave. LLC, 114 A.D.3d 587, 981 N.Y.S.2d 60 [1st Dept 2014]; Ginter v Flushing Terrace, LLC, 121 A.D.3d 840, 995 N.Y.S.2d 95 [2d Dept 2014]; cf Schultz v Bridgeport & Port Jefferson Steamboat Co., 68 A.D.3d 970, 891 N.Y.S.2d 146 [2d Dept 2009]).
The branch of the motion by GRI seeking summary judgment on its third-party indemnification claims against Advanced Pavement is denied. As noted above, Advanced Pavement established that plaintiff did not detrimentally rely on the performance of its services, and that its contractual obligations did not displace GRI's proprietary duties (see Waters v Ciminelli Dev. Co., Inc., 147 A.D.3d 1396, 46 N.Y.S.3d 756; Castro v Maple Run Condominium Assn., 41 A.D.3d 412, 837 N.Y.S.2d 729). Further, GRI failed to establish, as a matter of law, that Advanced Pavement's negligent "acts or omissions" in allegedly piling the snow and permitting it to melt and re-freeze was the cause of plaintiff s accident. In particular, GRI did not submit any expert affirmations or meteorological evidence regarding fluctuating temperatures, or Advanced Pavement's constructive notice of the alleged icy condition (see San Marco v Village/Town of Mount Kisco, 16 NY3d 111, 919 N.Y.S.2d 459 [2010]; Braun v Weissman, 68 A.D.3d 797, 890 N.Y.S.2d 615 [2d Dept 2009]; Walters v Costco Wholesale Corp., 51 A.D.3d 785, 858 N.Y.S.2d 269 [2d Dept 2008]). Thus, GRI failed to demonstrate its entitlement to either contractual or common law indemnification under the circumstances of this case. The right to contractual indemnification depends upon the specific language of the contract, and GRI failed to eliminate a triable issue as to whether the accident arose out of Advanced acts or omissions (see Shaughnessy v Huntington Hosp. Assn., 147 A.D.3d 994, 999-1000, 47 N.Y.S.3d 121; Tully v. Transitown S. Assoc, LLC, 145 A.D.3d 1571, 42 N.Y.S.3d 903 [4th Dept 2016]; Johnson v Wal-Mart, 125 A.D.3d 1468, 3 N.Y.S.3d 841 [4th Dept 2015]). Further, as the party seeking common-law indemnification, GRI failed to prove "that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident" (Correia v Professional Data Mgt., 259 A.D.2d 60, 65, 693 N.Y.S.2d 596 [1st Dept 1999]; see Perri v Gilbert Johnson Enters., Ltd., 14 A.D.3d 681. 790 N.Y.S.2d 25 [2d Dept 2005]; Priestly v Montefiore Med. Ctr., Einstein Med. Or., 10 A.D.3d 493, 495, 781 N.Y.S.2d 506 [1st Dept 2004]).
Additionally, inasmuch as Advanced Pavement submitted a copy of its certificate of insurance which names GRI and KE as additional insureds, such evidence, while insufficient to prove coverage as a matter of law, raises an issue of fact as to whether coverage was procured. Therefore, GRI failed to establish its prima facie entitlement to judgment on its claim that Advanced Pavement breached the parties' agreement by failing to procure it insurance (see DiMaggio v Chase Manhattan Bank, 266 A.D.2d 89, 698 N.Y.S.2d 656 [1st Dept 1999]; Horn Maintenance Corp. v Aetna Cas. & Sur. Co., 225 A.D.2d 443, 639 N.Y.S.2d 355 [1st Dept 1996]; cf. Barto v NS Partners, LLC, 74 A.D.3d 1717, 906 N.Y.S.2d 664 [4th Dept 2010]).
As to the branch of KE's motion for summary judgment dismissing the complaint against it, the property management agreement between KE and GRI designates KE as the "exclusive sub-managing agent" of the shopping Sunset Shopping Center. The agreement outlines KE's management duties and requires, among other things, that KE:
cause ... all buildings, parking areas, roads, appurtenances and grounds comprising the Shopping Center to be maintained according to standards for similar shopping centers ... Agent shall monitor the work of all supervisory, maintenance, and service employees and independent contractors... Such maintenance shall include, without limitation, maintenance and repair of all buildings, including all mechanical systems contained there, parking lots and common areas, cleaning all exterior spaces, painting, decorating and all carpentry work as would be reasonably expected to maintain and operate the Shopping Center... Agent shall perform ... all other business functions reasonably required in connection with the physical management and normal maintenance and repair of the Shopping Center during the term hereof.
The agreement further required that KE perform property inspections in connection with its management duties. In particular, exhibit A of the agreement, which describes the scope of the agent's services, provides, in pertinent part, that KE shall:
Conduct property inspections in accordance with frequencies as required by Manager under this Agreement with focus on aesthetics, cleanliness, maintenance, hazard prevention/risk management, and vendor performance
A property manager to whom the owner has delegated exclusive responsibility for the management, maintenance, and inspection property, owes a general duty to maintain it in a reasonably safe condition, and “ought to foresee the likelihood of physical harm to third persons as a result of reasonable reliance by the owner on [it] to discover or repair dangerous conditions" (Palka v Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 589, 611 N.Y.S.2d 817 [1994], quoting Prosser and Keeton, Torts 93 at 670 [5th ed]; see Urman v S&S, LLC, 85 A.D.3d 897, 925 N.Y.S.2d 186 [2d Dept 2011]; Demshick v Community Horn. Mgt. Corp., 34 A.D.3d 518, 519-520, 824 N.Y.S.2d 166, 168 [2d Dept 2006]). Furthermore, a property manager, like any other defendant, will be deemed to have constructive notice of a hazardous condition on a 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" (Torre v Aspen Knolls Estates Home Owners Assn., Inc., 150 A.D.3d 789, 790, 54N.Y.S.3d 84 [2d Dept 2017]). To meet its prima facie burden on the issue of lack of constructive notice, "the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" (Rong Wen Wu v Arniotes. 149 A.D.3d 786, 787, 50 N.Y.S.3d 563 [2d Dept 2017]).
Here, KE failed to eliminate triable issues from the case as to whether its contractual responsibility to inspect and control the performance of Advanced Pavement's snow removal activities entirely displaced GRI's proprietary duty to maintain the property in a reasonably safe condition and, if so, whether it possessed constructive notice of the alleged dangerous condition (see Palka v Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 611 N.Y.S.2d 817 [1994]; Kerwin v Fusco, 138A.D.3d 1398, 30N.Y.S.3d 419 ; DeCanio v Principal Bldg. Servs. Inc., 115 A.D.3d 579, 983 N.Y.S.2d 2 [1st Dept 2014]; Tamhane v Citibank, N.A., 61 A.D.3d 571, 877 N.Y.S.2d 78 [1st Dept 2009]; Karac v City of Elmira, 14 A.D.3d 842, 788 N.Y.S.2d 456 [3d Dept 2005]). Significantly, the property management agreement designated KE as the "exclusive sub-managing agent" and charged it with the responsibility to inspect, monitor, and approve the maintenance of the parking lot, and to do so with a focus on hazard prevention and risk management. GRI's owner's agent, Gregory Zike, confirmed the exclusivity of KE's authority, testifying that following the renovation of the shopping mall, KE became responsible for the day-to-day operation of the premises and interacting with the tenants, contractors, and subcontractors doing business there. Additionally, Zike testified that Advanced Pavement was hired as the snow removal contractor based on the recommendation of KE, and that payment for its snow removal services were conditioned on KE's inspection and approval of the adequacy of its work. Indeed, KE's employee, Jeffrey Riccio. testified that he generally visited the shopping center twice per-week to inspect the premises, and that in the cases where snow removal services were required, he personally inspected the premises and relied upon calls from tenants to confirm that those services were adequately performed. Riccio testified that he possessed the authority, following his inspection, to tell Advanced Pavement to relocate snow piles to the rear of the premises if he felt too many parking spots were blocked, or if he thought the snow presented safety issues. Riccio further testified that in his experience it was possible for snow piles to melt and re-freeze depending on fluctuating weather conditions.
As KE also failed to submit evidence, such as expert testimony or meteorological evidence regarding fluctuating temperatures, which establishes, as a matter of law, that plaintiffs injuries arose out of Advanced Pavement's "acts or omissions" in piling the snow and permitting it to melt and re-freeze (see San Marco v Village/Town of Mount Kisco, 16 N.Y.3d 111,919 N.Y.S.2d 459; Braun v Weissman, 68 A.D.3d 797, 890 N.Y.S.2d 615), the branch of its motion seeking summary judgment on its cross claims for contractual or common indemnification is denied (see Shaughnessy v Huntington Hosp. Assn., 147 A.D.3d 994,999-1000,47 N.Y.S.3d 121; Tully v Transitown S. Assoc, LLC, 145 A.D.3d 1571,42 N.Y.S.3d 903; Correia v Professional Data Mgt., 259 A.D.2d 60, 65, 693 N.Y.S.2d 596). Further, as discussed above, Advanced Pavement's submission of a copy of its certificate of liability insurance noting that KE was included in the policy as an additional insured raises triable issues warranting denial of the branch of KE's motion for summary judgment on its claim that Advanced breached the parties' agreement by failing to procure such insurance (see DiMaggio v Chase Manhattan Bank, 266 A.D.2d 89, 698 N.Y.S.2d 656; Horn Maintenance Corp. v Aetna Cas. & Sur. Co.. 225 A.D.2d 443, 639 N.Y.S.2d 355).