1 of 1 DOCUMENT
Dorene Mormile, Plaintiff, against Jamestown Management
Corporation, JT1211 L.P., Rockefeller Group Development
Corp., and Initial Cleaning Services, Inc., Defendants.
7703/04
SUPREME COURT OF NEW YORK, KINGS COUNTY
2008 NY Slip Op 52273U; 2008 N.Y. Misc. LEXIS 6899
October 29, 2008, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED
OFFICIAL REPORTS.
JUDGES: Bruce M. Balter, J.
OPINION BY: Bruce M. Balter
OPINION
Bruce M. Balter, J.
Upon the foregoing papers, defendant Initial Cleaning Services, Inc.
(Initial) moves for an order, pursuant to CPLR 3212, granting summary judgment
dismissing the complaint of plaintiff Dorene Mormile (Mormile) and all cross
claims of defendants Jamestown Management Corp. (Jamestown), JT1211, L.P.
(JT1211), and Rockefeller Group Development Corp. (Rockefeller) (collectively,
defendants). Defendants also move for an order, pursuant to CPLR 3212, granting
summary judgment dismissing Mormile's complaint and for a further order granting
summary judgment on their cross claims against Initial for breach of contract
and for a declaration that Initial must defend and indemnify defendants with
respect to Mormile's claims in this action.
This personal injury action arises out of an incident that occurred on
January 8, 2002 when Mormile allegedly slipped and fell in the lobby of a
commercial building at 1211 Avenue of the Americas in Manhattan. At the time of
the incident, JT1211 was the owner of the subject premises and Rockefeller Group
Development Corp. was the managing agent. Rockefeller entered into an agreement
with Initial effective January 1, 2001 to December 31, 2001 wherein Initial
agreed to perform various maintenance and cleaning tasks at the premises, which
included laying down mats "as necessary" and cleaning the floors of the lobby.
According to the agreement, Initial was responsible for polishing the marble
floor, steam cleaning the mats, and employing a day porter to pick up debris in
all public areas, among other things. Regarding the duties of the day porter,
the agreement stated that the porter was under the direction of the building
manager. According to Mormile's testimony at her examination before trial, it
was "drizzly" outside on the morning of the accident and it had rained the night
before. She testified that it was "visibly a rainy day," but that the rain had
stopped by the time she got out of the subway and was walking to the building.
She also testified that there was precipitation on the ground. Mormile arrived
at the premises, where she was employed by J.P. Morgan Chase, at approximately
8:30 a.m. and proceeded to her office. At this time, according to Mormile, the
mats in the lobby were already laid down. At approximately 9:30 a.m., Mormile
left her office on the 36th floor to get coffee from a vendor on 47th Street
near the premises. As Mormile was walking across the lobby on her way out of the
building, she slipped on an area of the marble floor that was not allegedly
covered by the carpeted mats. Mormile testified that there was approximately two
feet of exposed marble between the mats and that this was where she fell.
According to Mormile, there were two or three mats laid out on the lobby floor,
all with the same two foot gap between them, and this is the way she had seen
them configured on the floor on prior occasions. Mormile added that she slipped
on "wetness" and that she did not see the wetness until after her fall when she
noticed there were "scattered droplets and puddles" on the floor. Mormile also
testified that the rain had stopped by the time of her accident. She stated that
she did not see any janitor or maintenance person or any yellow warning signs in
the lobby at the time of her fall. When asked if she saw a porter in the lobby,
she testified that she only remembered seeing an individual working with a
planter in the lobby at the time of the accident. 1 According to Mormile, she
believed the wetness on the floor was caused by people walking in from outside
and tracking in the rain. However, Mormile testified that she did not know the
exact origin of the wetness or how long it had been on the lobby floor. She
further testified that she reported the wetness on the floor to a security guard
after her fall and that she had not made any previous complaints regarding
wetness in the lobby prior to her accident. 2
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1 On this
point, the court notes that, according to the contract, it was within the duties
of the day porter to clean all lobby planters daily, keeping them free of debris
at all times.
2 Mormile testified that she complained to her boss about the placement of the
mats; however, there is no testimony that she complained to anyone about any
accumulation of water on the lobby floor.
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According to the deposition testimony of Eladio Bracero (Bracero), the
premises' tenant service coordinator employed by Rockefeller at the time of the
accident, 3 Initial was responsible for laying down the carpeted mats in the
event of rain and this was done without any direction from Rockefeller. Bracero
also testified that the mats were custom-made for the premises and selected by
Rockefeller and that they were laid down end-to-end so that they were very close
to each other when covering the floor. According to Bracero, there was no gap
when the mats were laid properly on the floor and the only place where the
marble floor would be exposed would be near the elevator banks to the rear of
the reception desk. Bracero added that Initial was the only contractor at the
premises that was responsible for cleaning and mopping the lobby. However,
Bracero conceded that he and other Rockefeller employees were responsible for
making sure that the cleaning was done correctly, for making inspections, and
for informing the property manager if the cleaning or maintenance was not done
properly. In the event that he noticed a spill or accumulation of liquid on the
floor of the lobby, Bracero stated that he would radio security personnel to
cordon off the area with stanchions and warning signs and then notify Initial of
the condition to be remedied. Bracero testified that, prior to the incident, he
had not heard any complaints about the accumulation of water on the lobby floor
or the placement of the mats, although he knew that there had been slip and fall
accidents in the lobby in the past, but did not know specifics of any of the
incidents.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -3 In
November 2002, Bracero began working for ING Clarion as the property
administrator in the subject building and then later began working for Cushman &
Wakefield in August 2006 in the same role. Despite his numerous changes of
employment at the premises as the building management changed, Bracero testified
that he has been involved in some capacity there for over 10 years.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
According to the deposition testimony of Lbujo Mustac (Mustac), the acting
foreman for Initial at the time of the incident, Initial was responsible for
placing the mats before it started raining, without instruction from the
building management. Similar to the testimony of Bracero, Mustac testified that,
on the morning of the accident, his shift began at 7:30 a.m. and he did not
observe any gap between the rugs placed on the lobby floor or any accumulation
of water on the floor. Mustac also testified that, in the event of rain, Initial
would place two porters in the lobby to monitor the water on the floor and
yellow warning signs throughout the lobby.
On or about March 9, 2004, Mormile commenced an action (under Index No.
7703/04) against the owner of the premises, JT1211, and the alleged building
manager, Jamestown. After discussions with Mormile's counsel, defendants
discovered that Jamestown was not the building manager, but that Rockefeller
was. Defendants also discovered that Initial had contracted with Rockefeller to
perform cleaning and maintenance duties at the premises. Mormile served a
supplemental summons and amended complaint to reflect this information on
November 23, 2004. On or about January 3, 2005, Mormile commenced a separate
action against Initial, sounding in common law negligence (under Index No.
623/05) . These actions were, upon motion by Mormile, consolidated under Index
No. 7703/04.
In its motion for summary judgment, Initial argues that Mormile does not know
the nature of the alleged condition that caused her fall, how the alleged
condition came to be on the floor, or for what length of time the alleged
condition existed. Therefore, Initial maintains that Mormile cannot establish
that the water was present for any length of time such that any of the
defendants would have had sufficient time to discover the condition and remedy
it. According to Initial, since plaintiff cannot establish that any of the
defendants created or had actual or constructive notice of the alleged hazardous
condition, plaintiff is "apparently pursuing the theory that there should have
been a weather mat in the precise location of the occurrence." In this regard,
Initial asserts that "it has been repeatedly held that a defendant is not
required to cover a lobby floor with mats, nor is a defendant obligated to
continuously mop up all moisture resulting from any tracked-in precipitation."
Moreover, Initial asserts that, regardless of the sufficiency and placement of
the weather mats, a plaintiff must establish notice of the alleged condition and
Mormile cannot establish notice in the instant case. Initial further notes that
"plaintiff cannot establish that Initial owes her a legal duty," as it has been
repeatedly held that an independent contractor has no legal duty to a non-
contracting party, absent very limited circumstances. 4 Moreover, Initial argues
that plaintiff's complaint should be dismissed because the "storm in progress"
doctrine is applicable. Regarding defendants' cross claims for common-law
indemnification and contractual indemnification, Initial contends that such
claims should be dismissed on the grounds that: (1) plaintiff cannot meet her
prima facie burden against any of the defendants, (2) defendants have not
established that the purported contract was in effect at the time of the
occurrence, 5 (3) the terms of the purported contract were not triggered by the
subject accident, 6 (4) Initial has met any and all conditions and requirements
contained in the purported contract; (5) Initial was free from any active
negligence, (6) defendants have not established that they were free from active
negligence, and (7) the purported contractual indemnification provision is void
pursuant to General Obligations Law § 5-322.1. Regarding the application of §
5-322.1, Initial argues that under "the only conceivable scenario where [this]
provision would be applicable (i.e. if plaintiff proves that the [defendants]
[were] actively negligent), the General Obligations Law would void the
provision" because, pursuant to § 5-322.1, a party cannot contract with another
party to indemnify it relative to its own negligence.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -4 Initial
cites Espinal v Melville Snow Contractors, Inc., (98 NY2d 136, 773 N.E.2d 485,
746 N.Y.S.2d 120 [2002]) to the effect that there are three factors to be
considered in evaluating whether an independent contractor owes a non-
contracting third party a duty: "(1) whether the contracting party in failing to
exercise reasonable care in the performance of his duties launches a force of
harm; (2) whether the plaintiff detrimentally relied upon the continued
performance of the contractor's duties' and (3) whether the contracting party
has entirely displaced the owners and managers duties to safely maintain the
premises." In Espinal, the Court of Appeals held that the snow removal contract
at issue was not the type of "comprehensive and exclusive property maintenance
obligation" which could provide a basis for liability" since it did not entirely
absorb the landowner's duty to maintain the premises safely (Espinal, NY2d at
141, 773 N.E.2d 485, 746 N.Y.S.2d 120). Here, Initial argues that it only
performed "certain limited cleaning duties at the building" and that there were
numerous other entities that had management and maintenance responsibilities at
the building.
5 Initial claims that defendants have not produced a valid and binding
contract because the expiration date of the contract between Rockefeller and
Initial was December 31, 2001, which was prior to the accident. Initial also
claims that the contract "contains various documents that may or may not even be
related." Initial notes that Bracero admitted during his examination before
trial that he had no personal knowledge of the purported contract. Initial
further contends that Bracero testified that the purported contract had multiple
sections with different fonts and that he did not know if these various
documents constituted a single contract.
6 The indemnification provision in the purported contract contains the
following language: "and which shall be (or shall be alleged to be) in whole or
in part due to or the result of any act, omission, negligence, carelessness, or
unlawful conduct on the part" of Initial. According to Initial, this provision
"clearly contemplates some act or omission on the part of Initial that caused or
contributed to the occurrence." However, Initial notes that there has not been
any evidence submitted to suggest that Initial's acts or omissions were, in
fact, a cause of the accident.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Regarding the arguments submitted by Initial in support of its motion for
summary judgment, the court notes that defendants adopt the same arguments in
their own motion.
In opposition to both Initial and defendants' respective motions for summary
judgment, Mormile argues that, in failing to properly carry out its duty to fit
the mats together so as to completely cover the floors with no gaps (a duty
Initial knew, according to Mustac, was necessary in order to prevent the floor
from becoming slippery and dangerous), Initial exacerbated the already slippery
and dangerous condition of the floor and caused her slip and fall. 7 In this
regard, Mormile notes that, since the mats absorb water, when pedestrians cross
the mats they transfer water onto the bare sections of the floor between the
allegedly improperly placed mats. Mormile also contends that the placement of
the mats gave Mormile and other pedestrians the false impression that the floor
was properly covered and safe to traverse. Moreover, Mormile asserts that the
contract to maintain the lobby of the premises was "comprehensive and exclusive"
and that Initial acted independently in caring for and cleaning the subject
area. According to Mormile, it is reasonable to infer that defendants knew of
the dangerously slippery condition of the floor when it became wet and were
aware that it was wet that morning for a significant period of time, "certainly
long enough to remedy the condition." Mormile adds that, because the mats were
not properly placed end-to-end, there were no signs warning of the wet condition
of the floor, and no porters were present to clean the water, there is an issue
of fact as to whether Initial breached its duty to Mormile as a third-party
beneficiary of Initial's contractual obligations. According to Mormile, the
cases cited by Initial regarding the placement of weather mats are not
applicable as they deal with landowners who owed no duty to place mats and guard
against water accumulation, unlike in this case where Initial which had a
contractual duty to properly place the mats. Finally, Mormile argues that,
because the rain had stopped by the time Mormile got on the subway on the way to
work, the "storm in progress" doctrine does not apply.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -7 In
support of this argument, Mormile cites Espinal, which is also relied upon by
defendants, and argues that "[i]n actuality, Espinal stands for the proposition
that a defendant who undertakes to render services and then negligently creates
or exacerbates a dangerous condition may be liable for any resulting injury'" (
Espinal, at 141-142). Mormile contends that, rather than supporting the
proposition that an independent contractor owes no duty to a non-contracting
third-party, Espinal instead supports the position that Initial, as the primary
and only contractor at the subject location responsible for the care and
maintenance of the subject lobby, owed a duty to Mormile to maintain the lobby
in a reasonably safe condition.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
In opposition to that branch of Initial's motion which seeks to dismiss the
cross claims that have been asserted against Initial by defendants, defendants
assert that the purported contract between Rockefeller and Initial was in effect
on the day of the alleged accident. In support of this contention, defendants
note that, "[b]y its terms, and as plainly and obviously stated in the second
paragraph of the first page of the Service Purchase Agreement, the contract
between [defendants] and [Initial] was automatically renewed' from month to
month until the contract was terminated." In this regard, defendants argue that,
"[w]ithout any such evidence of a termination, it is obvious that the contract
between defendants and Initial was valid and in effect on the day of Mormile's
alleged accident." Further, defendants maintain that the obligation of Initial
to defend and indemnify defendants is independent of Mormile's ability or
inability to make out a prima facie case of negligence against any of the
defendants. Turning to the language of the indemnification provision, defendants
contend that Mormile "clearly has alleged that the accident was due to an act,
omission, or negligence on the part of, among others, [Initial]," and, once
there is such an allegation, defendants are entitled to be defended and, if
necessary, indemnified by Initial. In addition, according to defendants, General
Obligations Law § 5-322.1 is inapplicable because the indemnity provision at
issue does not seek indemnification based on an act or omission on the part of
defendants but, rather, on the part of the "Contractor," in this case, Initial.
Defendants argue, in the alternative, that, if the court decides that the
indemnification provision is void under § 5-322.1, Initial still cannot avoid
its obligation to insure defendants with respect to any liability that arises
from any act, omission, or negligence on the part of Initial or defendants. In
this regard, defendants maintain that Initial has not provided the requisite
insurance called for by the agreement, and is, therefore, in breach of its
contract and liable to defendants as if it were the insurer for them.
In reply, defendants argue that plaintiff has failed to establish that the
wet condition was created by them or that they had actual or constructive notice
of the specific wet condition that allegedly caused Mormile's accident.
Defendants assert that there is no evidence that they were informed of or knew
of the existence of the allegedly wet condition and they maintain that a general
awareness that wet conditions could occur in the lobby is legally insufficient
to establish a prima facie case of negligence against them.
In its reply papers, Initial reaffirms its reliance on Espinal and further
states that Mormile's argument that Initial's cleaning contract "entirely
displaced" the duty of owners and managers to safely maintain the premises is
inaccurate. Initial notes that the building owners hired a property manger to
manage the building, as well as security guards and other cleaning contractors
at the premises. Moreover, Initial claims that it did, in fact, meet its prima
facie burden of entitlement to summary judgment by submitting the deposition
testimony of Bracero and Mustac, as well as that of Mormile herself, to the
effect that there was no notice of any purportedly dangerous condition. In
response to Mormile's opposition regarding the placement of the weather mats,
Initial argues that Mormile has not provided any legal authority to support her
position and that any attempt to establish liability against defendants by
asserting that they failed to place weather mats in the precise area where
Mormile fell must fail as a matter of law.
In their motion for summary judgment based upon an alleged breach of contract
and for a declaration that Initial must defend and, if necessary, indemnify
defendants with respect to plaintiff's claims, defendants argue that Initial has
refused to abide by its contract and to take over the defense of this action on
defendants' behalf. Defendants note that Mormile's allegation that the lobby
floor was wet and that there was a separation between the mats is "within the
contractual responsibility of [Initial]." Defendants point out that the defense
and indemnification provision does not require that there be a finding that
Initial was negligent before Initial's contractual obligation to defendants is
triggered; rather, it is only necessary that it be alleged "that the accident
arose from or was related to [Initial's] performance, or non-performance, of any
of its services."
The court notes that Initial's opposition to defendants' motion is
substantially similar to Initial's arguments in its own motion for summary
judgment and, therefore, several arguments will not be repeated here. Initial
asserts that defendants' claims for indemnification are without merit because:
(1) Mormile will never be able to establish a prima facie cause of action in
negligence against any of the defendants, (2) Mormile cannot avoid her burden of
establishing notice by alleging that there were no mats in the precise area
where she fell, and (3) Mormile cannot establish liability against any of the
defendants because they are entitled to summary judgment based upon the "storm
in progress" doctrine. Initial further contends that, even if Mormile's
complaint is not dismissed, defendants' cross claims against Initial should be
dismissed and the indemnification provision voided because a party cannot
contract with another to indemnify it relative to its own negligence. Finally,
Initial reiterates its argument that defendants' common-law and contractual
indemnification claims should be dismissed because defendants have not produced
any evidence that the purported contract is valid and binding. In this regard,
Initial notes that there is no affidavit from someone with personal knowledge
regarding the purported "automatic renewal" of the contract and that it is the
obligation of defendants, not Initial, to establish the existence of a contract.
Initial also points out that defendants have not responded to Initial's argument
that the various documents submitted with the contract may or may not be
related. Finally, regarding defendants' claim that Initial has failed to procure
insurance in accordance with the terms of the contract, Initial asserts that
this argument was raised for the first time in opposition to the motion for
summary judgment and, therefore, it should not be considered.
It is well established that summary judgment will be granted only if there
are no triable issues of fact (see Sillman v Twentieth Century-Fox Film Corp., 3
NY2d 395, 404, 144 N.E.2d 387, 165 N.Y.S.2d 498 [1957]; Famularo v Havasi, 221
AD2d 587, 635 N.Y.S.2d 495 [1995]). "On a motion for summary judgment the court
is not to determine credibility but whether there exists a factual issue, or if
arguably there is a genuine issue of fact" (S.J. Capelin Assoc. v Globe Mfg.
Corp., 34 NY2d 338, 341, 313 N.E.2d 776, 357 N.Y.S.2d 478 [1974]). To establish
a prima facie case of negligence against defendants, a plaintiff must show: (1)
the existence of a duty on each defendant's part to plaintiff; (2) a breach of
that duty; and (3) that such breach was a substantial cause of the resulting
injury (see Gross v NYC Transit Authority, 256 AD2d 128, 129, 681 N.Y.S.2d 513
[1998]; Cruz v NYC Transit Authority, 136 AD2d 196, 198, 526 N.Y.S.2d 827
[1988]). In order to establish a prima facie case of negligence in a "slip and
fall" case, a plaintiff must demonstrate that defendant created the condition or
had a sufficient opportunity, within the exercise of reasonable care, to remedy
the situation (see Gordon v American Mus. of Nat. Hist., 67 NY2d 836, 492 N.E.2d
774, 501 N.Y.S.2d 646 [1986]; Lewis v Metropolitan Transp. Auth., 99 AD2d 246,
472 N.Y.S.2d 368 [1984], affd, 64 NY2d 670, 474 N.E.2d 612, 485 N.Y.S.2d 252
[1984]).
For there to be constructive notice, "a defect must be visible and apparent
and it must exist for a sufficient length of time prior to the accident to
permit defendant's employees to discover and remedy it" (Gordon v American Mus.
of Nat. Hist., 67 NY2d 836, 837, 492 N.E.2d 774, 501 N.Y.S.2d 646 [1986]; Negri
v Stop & Shop, Inc., 65 NY2d 625, 480 N.E.2d 740, 491 N.Y.S.2d 151 [1985];
Raffile v Tower Air, Inc., 264 AD2d at 721, 695 N.Y.S.2d 116 [1999]; Rojas v
Supermarkets General, 238 AD2d 393, 656 N.Y.S.2d 346 [1997], lv denied 91 NY2d
814 , 698 N.E.2d 956, 676 N.Y.S.2d 127[1998]). "The mere happening of the
accident does not establish liability on the part of the defendant" (Lewis v
Metropolitan Transp. Auth., 99 AD2d 246, 251, 472 N.Y.S.2d 368 [1984], affd 64
NY2d 670, 474 N.E.2d 612, 485 N.Y.S.2d 252 [1984]); rather, it must be shown
that "the owner ha[d] a sufficient opportunity, within the exercise of
reasonable care, to remedy the situation," and failed to do so (see Mercer v
City of New York, 223 AD2d 688, 689, 637 N.Y.S.2d 456 [1996], affd 88 NY2d 955,
670 N.E.2d 443, 647 N.Y.S.2d 159 [1996]). Moreover, "a general awareness' that a
dangerous condition may be present is legally insufficient to constitute notice
of the particular condition that caused plaintiff's fall" (Piaquadio v Recine
Rlty., 84 NY2d 967, 969, 646 N.E.2d 795, 622 N.Y.S. 493 [1984]). Mere surmise
and conjecture that a defendant created the dangerous condition does not
demonstrate an issue of fact sufficient to survive a motion to dismiss (see
Ramatowski v City of New York, 284 AD2d 318, 725 N.Y.S.2d 569 [2001]; see also
Eddy v Tops Friendly Mkts., 91 AD2d 1203, 459 N.Y.S.2d 196 [1983], affd 59 NY2d
692, 450 N.E.2d 243, 463 N.Y.S.2d 437 [1983]).
The court finds that both Initial and defendants have satisfied their burden
of making a prima facie showing that they did not create the allegedly hazardous
condition which purportedly caused Mormile's fall and that they lacked actual
and/or constructive notice of the condition. It, therefore, became incumbent
upon Mormile to come forward with evidentiary proof, in admissible form, to
demonstrate the existence of a triable issue of fact.
Viewing the evidence in the light most favorable to Mormile, the court finds
that she has not demonstrated that Initial or defendants committed any
affirmative act of negligence or that any negligence on their part either
created or increased a hazard that would not have otherwise existed. Moreover,
on the record before the court, there is no evidence from which it may be
reasonably inferred that any breach of duty by Initial or defendants
substantially or proximately resulted in Mormile's injury. Similarly unavailing
is Mormile's contention that the placement of the mats in the area where
plaintiff fell "exacerbated" the condition of the wetness that caused her fall (
see Espinal at 141-142). Defendants were not required to cover the floors with
mats (see Kovelsky v City University of New York, 221 AD2d 234, 234, 634
N.Y.S.2d 1 [1995]) or to constantly respond to rainwater being tracked in from
the outside (see Keum Choi v Olympia & York Water Street Co., 278 AD2d 106, 107,
718 N.Y.S.2d 42 [2000]). Consequently, Mormile's submissions do not raise a
triable issue of fact as to whether Initial or defendants created a dangerous
condition by the placement and utilization of the floor mats (see Dini v
Imperial Workwear Services, Inc., 300 AD2d 279, 751 N.Y.S.2d 297 [2002];
Schneider v Analisa Salon Ltd., 270 Ad2d 245, 704 N.Y.S.2d 843 [2000]). 8
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -8 Mormile
argues that Initial owed a duty to her as a third-party beneficiary of its
contractual obligation to maintain the floors. Relying on Espinal, Mormile
asserts that defendants and Initial exacerbated the condition of the floor by
leaving an exposed gap between the mats. Even if the contract between Initial
and Rockefeller was "comprehensive and exclusive" and Initial's contractual duty
displaced the duty of defendants to maintain the floors, there is simply no
evidence that the placement of the mats made the alleged wet condition of the
floor any worse. This is especially true in the absence of any duty to cover the
entire lobby floor with mats in the first place.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
While Mormile contends that Initial and defendants had actual notice of the
allegedly wet condition on the lobby floor, she has submitted no proof that
refutes Initial and defendants' showing of lack of notice. As noted above,
Mormile did not observe the wetness prior to her fall but, rather, noticed the
alleged condition after her fall. Furthermore, there is no evidence of a history
of prior accidents similar to that of Mormile's, or that Initial or defendants
were aware of any prior complaints of the condition. Thus, Mormile has failed to
raise a triable issue of fact with respect to Initial and defendants' lack of
actual notice.
Although Mormile further claims that Initial and defendants had constructive
notice of the condition of the floor, there is no evidence that the wetness
existed for any appreciable length of time before Mormile's accident. Moreover,
any "general awareness" that Initial or defendants may have had that water might
be tracked into the premises on a rainy day does not establish constructive
notice of the specific condition alleged here. There is no evidence from which a
jury could reasonably conclude that the alleged wetness existed for a period of
time to allow Initial or defendants to have discovered and remedied it (see
Mercer AD2d at 689, 637 N.Y.S.2d 456). It is, for example, quite possible that
any water which was on the floor had been tracked into the building by
individuals immediately preceding Mormile (see Keum Choi 278 AD2d at 107;
Kovelsky 221 AD2d at 234; Hussein v New York City Tr. Auth., 266 AD2d 146, 699
N.Y.S.2d 27 [1999]).
Accordingly, the motions by Initial and defendants for summary judgment are
granted. 9
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -9 It is
axiomatic that owners of real property owe to those using their property the
duty to exercise reasonable care 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 (see Jarvis v Eastman, 202 AD2d 826, 827, 609 N.Y.S.2d 683
[1994]; Koppel v Hebrew Academy of Five Towns, 191 AD2d 415, 594 N.Y.S.2d 310
[1993]; also see Basso v Miller, 40 NY2d 233, 352 N.E.2d 868, 386 N.Y.S.2d 564
[1976]). According to Mormile, it rained the evening before, and the morning of,
the accident, but the rain had stopped by the time she got off of the subway on
her way to work. Defendants claim that the "storm in progress" defense is
applicable here and should absolve them from liability. Generally, there is no
liability for a plaintiff's injuries resulting from a fall on accumulated rain
until after the storm has ended, so as to allow the defendants a reasonable
period of time to clean the area (see Solazzo v New York City Transit Authority,
21 AD3d 735, 800 N.Y.S.2d 698 [2005] citing Valentine v City of New York, 86
Ad2d 381, 449 N.Y.S.2d 991 [1982]). Defendants failed to come forward with any
evidence to substantiate their claim that Mormile sustained her injury during
the course of an ongoing storm. Defendants did not submit any meteorological
data to demonstrate that there was some form of precipitation during the
pertinent time period and the only relevant testimony on this point came from
Mormile, who stated that it was raining on the morning of her injury, but that
the rain had stopped by the time of her accident. Under such circumstances,
defendants plainly cannot avail themselves of this defense.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Contractual indemnification is generally decided as a matter of law pursuant
to the terms of the contract after the trier of fact determines culpability. "A
party is entitled to full contractual indemnification provided that the
intention to indemnify can be clearly implied from the language and purposes of
the entire agreement and the surrounding facts and circumstances" (Drzewinski v
Atlantic Scaffold & Ladder Co., Inc., 70 NY2d 774, 777, 515 N.E.2d 902, 521
N.Y.S.2d 216 [1987]). Since this court has determined that neither Initial nor
defendants are liable to Mormile, it is unnecessary to resolve the issue of
indemnification. However, it appears that, pursuant to the terms of the subject
agreement, Initial was required to provide for defendants' defense in actions
arising out of or in connection with Initial's work under the subject contract.
Specifically, paragraph 9 of the agreement provides, as is relevant:
"Contractor will indemnify and save harmless Owner . . . from and against any
and all liability (including, but not limited to, statutory liability), loss,
damages, interest, judgments, and liens growing out of, and any and all costs
and expenses (including, but not limited to, counsel fees and disbursements)
arising out of or incurred in connection with, and all claims, demands, suits,
actions, and/or proceedings which shall be made or brought against any of the
Indemnitees for or in relation to: (a) any (or any alleged) injury to, or death
of, any person or persons . . . arising out of or in connection with the
performance of the Services . . . which shall be (or shall be alleged to be) in
whole or in part due to or the result of any act, omission, negligence,
carelessness or unlawful conduct on the part of Contractor . . ."
Because the underlying personal injury action alleges that both Initial and
defendants were responsible for the claimed dangerous condition of the subject
premises and that said condition resulted, at least in part, from work performed
by Initial, Initial's responsibility to defend defendants in this action
preceded and survives the court's subsequent determination, as set forth herein,
that neither Initial nor defendants are liable to Mormile.
Defendants met their initial burden of demonstrating an entitlement to
contractual indemnification by introducing the contract, which includes an
indemnification clause in their favor. In response to this prima facie showing,
Initial attempts to an raise issue of fact regarding the validity of the
contract. Specifically, Initial argues that the agreement between Initial and
Rockefeller had expired by the time of the accident. However, the contract also
provided for automatic renewal and Initial presented no evidence that the
contract has been terminated by either party. Initial also asserts that there
has been no testimony from anyone with personal knowledge regarding whether the
document titled Exhibit "A," "Specifications, General Cleaning Conditions,
Frequency Explanations," is part of the contract signed by both parties. Initial
contends that it is unclear how this document relates to the contract, why its
provisions are in a different font from the remainder of the contract or why
multiple sections of the purported contract pertained to the same areas of the
building. The court notes that the agreement signed by both parties refers to
Exhibit "A" as providing for a more detailed explanation of the required
services which Initial must perform under the contract. Initial presents no
evidence to refute defendants showing that Exhibit "A" was part of the subject
agreement. Moreover, contrary to Initial's contention, the prohibition against
indemnifying a party for its own negligence pursuant to General Obligations Law
§ 5-322.1 does not apply where, as here, the party seeking indemnification is
found to be free of any negligence (see Davis v All State Assoc., 23 AD3d 607,
608, 806 N.Y.S.2d 669 [2005]). Accordingly, that branch of defendants' motion
which seeks an order granting summary judgment with respect to its cross claims
for indemnification against Initial is granted to the extent of declaring that
Initial was and is required to defend defendants in the underlying personal
injury action and to reimburse defendants for all legal expenses incurred in the
underlying action. A hearing will be scheduled before a JHO, to determine the
appropriate amount of compensation.
The court has considered defendants' remaining contentions regarding
Initial's alleged failure to procure insurance and finds that, since defendants
did not expressly move for summary judgment on this ground, the issue is not
appropriately before the court at this time.
The foregoing constitutes the decision and order of this court.