Alexander v. New York City Transit

• Decision Date: 16 November 2006
• Docket Number: 9288.
• Citation: 824 N.Y.S.2d 262,34 A.D.3d 312,2006 NY Slip Op 08325
• Parties: SUSAN ALEXANDER, Appellant, v. NEW YORK CITY TRANSIT, Defendant, and MANHATTAN MALL, LLC, et al., Respondents. MANHATTAN MALL, LLC, Third-Party Plaintiff-Respondent, v. ONESOURCE FACILITIES SERVICES, INC., Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

34 A.D.3d 312

824 N.Y.S.2d 262

2006 NY Slip Op 08325

SUSAN ALEXANDER, Appellant, v. NEW YORK CITY TRANSIT, Defendant, and MANHATTAN MALL, LLC, et al., Respondents.

MANHATTAN MALL, LLC, Third-Party Plaintiff-Respondent, v. ONESOURCE FACILITIES SERVICES, INC., Third-Party Defendant-Appellant.

9288.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided November 16, 2006.

Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered July 15, 2005, which granted defendant and third-party plaintiff Manhattan Mall's motion for summary judgment dismissing plaintiff's complaint and all cross claims interposed against it, unanimously reversed, on the law, without costs, the motion denied and the complaint and cross claims reinstated.

This is a personal injury action in which plaintiff claims that she was injured when, while descending a stairway leading from the Manhattan Mall to the 34th Street subway station, her foot got caught in a hole in the tile floor on a landing, causing her ankle to twist. Plaintiff maintains that she lost her balance as a result, and fell down an entire set of steps. Manhattan Mall (the Mall) owns the premises in question, and had contracted with defendant, third-party defendant OneSource Facilities Services, Inc. for certain custodial services as discussed in the "Manhattan Mall Janitorial Housekeeping Specifications." The Mall, at the close of discovery, moved for summary judgment for contractual indemnification against OneSource, against which it had commenced a third-party action, or, in the alternative, dismissing the complaint and all cross claims.

The motion court, in a brief opinion which is devoid of any analysis, held, in the decretal paragraph, that "[f]or the reasons stated Manhattan Mall's motion for summary judgment is granted dismissing the complaint and all cross claims," which would appear to indicate that the court was granting the alternative relief. The motion court, however, also opined in the "body" of its decision that "OneSource contracted with the owner Manhattan Mall to defend, indemnify and hold harmless.... OneSource was also supposed to assume the defense of Manhattan Mall." It is unclear if the foregoing was intended to act as a declaration that OneSource has a duty to defend and indemnify the Mall pursuant to the provisions of the contract, although the decretal gives no indication that any relief was granted in the third-party action. In any event, plaintiff and OneSource appeal and we now reverse.

It is well established that a landowner is under a duty to maintain its property in a reasonably safe condition under the existing circumstances, including the likelihood of injury to a third party, the potential that such injury would be of a serious nature, and the burden of avoiding such risk (Basso v Miller, 40 NY2d 233, 241 [1976]; Pappalardo v New York Health & Racquet Club, 279 AD2d 134, 141-142 [2000]). In order to subject a property owner to liability for an alleged breach of this duty, the plaintiff must demonstrate that the owner created, or had actual or constructive notice of the...