Anable v. Pub. Storage Props. XIV, Inc.

• Decision Date: 17 May 2012
• Docket Number: Index No.: H3137/08
• Citation: 2012 NY Slip Op 31418
• Parties: RICHARD ANABLE, Plaintiff, v. PUBLIC STORAGE PROPERTIES XIV, INC., PUBLIC STORAGE PROPERTIES XIV, LTD., PUBLIC STORAGE, INC., AND SHURGARD STORAGE CENTERS, LLC, Defendants. PUBLIC STORAGE, AS SUCCESSOR IN INTEREST TO PUBLIC STORAGE, INC., AND SHURGARD STORAGE CENTERS, LLC, Third-Party Plaintiffs, v. ECOLAB, INC., Third-Party Defendant.
• Court: New York Supreme Court

2012 NY Slip Op 31418

RICHARD ANABLE, Plaintiff,

v.PUBLIC STORAGE PROPERTIES XIV, INC.,

PUBLIC STORAGE PROPERTIES XIV, LTD., PUBLIC STORAGE,

INC., AND SHURGARD STORAGE CENTERS, LLC, Defendants.

PUBLIC STORAGE, AS SUCCESSOR IN INTEREST TO PUBLIC STORAGE,

INC., AND SHURGARD STORAGE CENTERS, LLC, Third-Party Plaintiffs,

v.ECOLAB, INC., Third-Party Defendant.

Index No.: H3137/08

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK; CIVIE TERM: PART 19

Dated: May 17, 2012

Submission Date: 2/1/2012

DECISION AND ORDER

For Plaintiff:

Talisman & Delorez., P.C.

For Defendants/Third-Parly Plaintiffs

Cullen and Dykman, LLP

For Ecolab, Inc.:

Dobis, Russell & Peterson, P.C.

Papers considered in review of this motion for summary judgment:

Notice of Motion............1

Aff in Opp................2

Reply Aff.................3

HON. SALIANN SCARPULLA, J.:

In this action to recover damages for personal injuries, third-party defendant Eolab, Inc. ("Ecolarb") moves for summary judgment dismissing the third-party complaint.

On November 6, 2007, plaintiff Richard Anable ("Anable"), an Ecolab employee, was injured when, in the course of his employment with Lcolab. he opened the roll-down door of a self-storage unit rented by Ecolab from the owners of a storage facility, defendants Shurgard Storage Centers, LLC ("Shurgard") and Public Storage.

The lease agreement for the subject self-storage unit provided, in relevant part,

Owner does not have any obligation to carry insurance on Occupant's property stored in the Storage Unit. If Occupant wishes to have his property covered by insurance, Occupant must obtain separate coverage. Owner will not be responsible or otherwise liable, directly or indirectly, for loss or damage to the property of Occupant due to any cause, including fire, explosion, theft, vandalism, wind or water damage, any defect, whether known or subsequently created or discovered, in the Storage Unit, or acts or omissions of any third party, regardless of whether such loss or damage may be caused or contributed to by the negligence of Owner, its agents or employees.

Owner shall not be liable for any injury sustained by Occupant or others from any defects, known or subsequently discovered or created, in the Storage Unit or Self-Storage Center, or caused by any condition existing near or about the Storage Unit or the Self-Storage Center, or resulting from the acts or omissions of Occupant.

Occupant agrees to indemnify and hold Owner harmless from and against any and all claims, damages, costs and expenses, including attorneys' fees arising from or in connection with Occupant's use of the Storage Unit, Occupant's presence on the Self-Storage Center premises or anything done in the Storage Unit or Self-Storage Center by Occupant or Occupant's agents, employees or invitees resulting in damage or injury to person or property of Occupant or of any other party or to any Storage Unit or part of the Self-Storage Center.

The Agreement also gave the Customer the option of participating in the customer storage insurance program, whereby the Customer could purchase insurance from the Owner for theft coverage.

According to Public Storage district manager Frank Ward, occupants of the storage units did not owe any duty to make repairs on the units. Rather, Public Storage was responsible for all repairs.

Anable commenced an action against Public Storage and Shurgard seeking to recover damages for the injuries he sustained to his shoulder, alleging that the roll-down door was a hazardous condition of which Shurgard and Public Storage had notice.¹

Public Storage and Shurgard then commenced a third-parly action against Ecolab. claiming that pursuant to the lease agreement for the subject storage unit, they were not liable for any injury sustained by Ecolab from any defects known or subsequently discovered or created. They further alleged that pursuant to the lease's indemnification clause, Ecolab agreed to indemnify and hold them harmless from and against any and all claims, damages, costs and expenses arising from or in connection with Ecolab's use of the storage unit, including anything done resulting in damage or injury to Ecolab. They asserted claims for (1) contractual indemnity for any judgment against Public Storage and Shurgard and all attorneys fees, costs and disbursements; (2) contractual indemnity for their costs incurred in the main action and third party action; (3) negligence, claiming that the dangerous condition was created and permitted to exist by Ecolab; and (4) negligence, claiming that if Anable sustained damages by reason other than his own carelessness andnegligence, then the damages were caused by Lcolab's negligence, carelessness or breach of law, contract statute or ordinance.

Lcolab now moves for summary judgment dismissing (he third parly complaint, alleging that (1) it owed no duty to maintain the roll-down door on premises owned and operated by Shurgard and Public Storage and there is no evidence that any negligence on its part caused the delects in the roll-down door; (2) the indemnification language in the lease is unenforceable pursuant to General Obligations Law §5-321; and (3) because the indemnity language is unenforceable and Anahle did not suffer a grave injury, all third party claims against Ecolab are barred by Workers Compensation Law §11.

In opposition, Shurgard and Public Storage argue, inter alia, that (I) no evidence was presented that Shurgard and Public Storage had notice of any problem with the subject roll-down door; (2) the lease was the subject of arms length negotiations by sophisticated parties and contained insurance provisions and thus, fails under an exception to General Obligations Law §5-321; (3) Workers Compensation Law §11 does not bar the claim because Ecolab entered into a written contract to indemnify Shurgard and Public Storage; and (4) because Ecolab employees undertook to make repairs to the subject door in the time period prior to the subject accident, Ecolab undertook a duty of care, launched a force or instrument of harm and thus, may be liable for the dangerous condition of the door that caused Anable's injuries.

In reply, Lcolab first argues that the insurance provisions in the lease do not bring the lease under the exception to General Obligations Law §5-321 because they only contemplate insurance in regard to the renter's property in the unit, not liability insurance for the benefit of the public. Further, no evidence has been presented that this was an arms length negotiation by sophisticated parties, Rather, the lease was a pre-printed form drafted by Shurgard with no negotiation.

Ixolab further contends that the claims are barred by Workers' Compensation Law §11 even if there was a valid indemnity agreement because the only claims that are...