Baer v. 180 Varick LLC

• Decision Date: 14 November 2016
• Docket Number: No. 158789/2014.,158789/2014.
• Parties: Ellen BAER, Plaintiff, v. 180 VARICK LLC, Olmstead Properties, Inc., and Mario's General Contracting, INC., Defendants. 180 Varick LLC and Olmstead Properties, INC., Third–Party Plaintiff, Mario's General Contracting, Inc., Third–Party Defendant.
• Court: New York Supreme Court

54 N.Y.S.3d 609 (Table)

Ellen BAER, Plaintiff,
v.
180 VARICK LLC, Olmstead Properties, Inc., and Mario's General Contracting, INC., Defendants.

180 Varick LLC and Olmstead Properties, INC., Third–Party Plaintiff,

Mario's General Contracting, Inc., Third–Party Defendant.

No. 158789/2014.

Supreme Court, New York County, New York.

Nov. 14, 2016.

Robert Benjamin Weissman, of Saretsky, Katz, Dranoff & Glass, New York, attorneys for plaintiff.

Paul Loumeau, Of Law Office of Keith J. Conway, Melville, attorneys for defendants 180 Varick LLC and Olmstead Properties, Inc.

James J. Toomey, Law Office of James J. Toomey, New York, attorneys for defendant Mario's General Contracting, Inc.

CAROL R. EDMEAD, J.

MEMORANDUM DECISION

In this personal injury action arising out of a trip and fall accident, defendant Mario's General Contracting, Inc. ("General Contracting") moves for summary judgment (sequence 001) dismissing plaintiff's complaint and all cross-claims against. Defendants 180 Varick LLC ("180") and Olmstead Properties, Inc. ("Olmstead") (collectively, the "Owner/Manager") join in General Contracting's motion to dismiss the complaint and all cross-claims asserted against it.

The Owner/Manager separately moves for summary judgment on its cross-claims against General Contracting for breach of contract, indemnification, contribution, and attorneys' fees (motion sequence 002). General Contracting opposes the motion, and cross moves to dismiss the cross-claims and third party complaint against it.¹

Factual Background

Plaintiff alleges that on August 15, 2013, she tripped and fell due to an uneven, broken, raised and unsafe condition of the hallway flooring on the fourth floor of 180 Varick Street, New York, New York (the "building"). Plaintiff claims that 180, as owner of the building, Olmstead, as building manager, and General Contracting, the contractor working at the accident location, were negligent.

In support of its motion to dismiss the complaint and all cross-claims, General Contracting argues (and the Owner/Manager concurs) that the alleged dangerous condition was trivial and not actionable as a matter of law. Plaintiff testified to an "unevenness" under her foot when she fell and the indentations in the area were a quarter of an inch; she could not say whether the indentations were more than a half inch. General Contracting's carpenter, Nicholas Perry, who was performing work in the area in the hallway at a doorway away from the area, stated that he had cleaned the area when plaintiff fell and that he observed no tripping hazard in the area. Further, 180's Building Administrator Jordan Hathaway stated that she had shown space to a prospective tenant earlier in the day, and the floor was uncoated, but no one had difficulty walking on the floor and there were no complaints about the condition of the floor before the accident. There is no evidence that General Contracting caused or created the condition and the testimony shows that there was no debris in the area.

In opposition, plaintiff argues that the testimonies and statements by the parties and four non-party eyewitnesses establish that the dangerous condition was not trivial and that the Owner/Manager had prior notice of the dangerous condition.

In reply, General Contracting argues that the nonparty witnesses do not provide any reliable measurements contradicting that there were no floor defects of any substantial height. Any alleged debris remaining in the hallway was of unknown origin, and General Contracting had no duty to clean an other debris in the hallway. The only work performed by General Contracting on the day of the accident was the removal of an exit door, and the jackhammer was not used, and no concrete had been cut yet. General Contracting's owner also stated that he did not know when jackhammering was performed. 180's building manager toured the floor before leaving at 5:00 p.m. and saw no unsafe condition.

The Owner/Manager's separate motion for judgment on its cross-claims argues that the construction Contract and subsequent Proposal with General Contracting governed the work for the fourth floor corridor renovation at the building. Based on the affidavit of Olmstead's Executive Managing Director (Steven Marvin), and deposition testimonies of 180's Building Manger (Cesar Vasquez) and Administrator (Jordan Hathaway), and General Contracting's owner (Marijan Juncaj) and carpenter (Nicholas Perry), plaintiff's injury arose out of or was related to General Contracting's work under the contract. Plaintiff's injury did not arise out any acts or omissions on the part of the Owner/Manager. Thus, the Owner/Manager is entitled to common law and contractual indemnification and contribution by General Contracting. The record also establishes that General Contracting was contractually obligated to procure insurance in favor of the Owner/Manager. However, General Contracting's insurer, Northfield Insurance Company ("Northfield Insurance") denied the Owner/Manager's tender for defense and indemnification on the ground that the Owner/Manager was neither listed nor qualified as an additional insured on the subject policy.

In opposition, General Contracting argues that the Owner/Manager's motion is moot in light of the trivial nature of the alleged defect. In any event, the Owner/Manager was aware of the alleged conditions and took no remedial action when it found the area safe and that no remedial action was necessary. The accident occurred after General Contracting's work was completed for the day, and after the flooring was cleaned. And, plaintiff's accident occurred on the natural topography of the floor. Since the Owner/Manager is ultimately liable for the condition of the common hallway, and failed in its obligation to undertake protective measures, there is no basis for contractual or common law indemnity. Further, the indemnification and insurance procurement clauses do not apply to the work at issue. Nothing in the Proposal contains any indemnification or insurance obligations, or indicates that there were any prior agreements that are incorporated for the job being performed at the time of the accident. And, the Owner/Manager's witnesses lack personal knowledge of the purported agreements. Even if the Contract applies to the work, the indemnification clause exempts liability for the negligence of the proposed indemnitees; and, General Contracting was not negligent. Plaintiff's fall occurred beyond the area where General Contracting's workers were performing work and Perry and Hathaway stated that there was no debris in the subject area. And, the cross-claims against General Contracting must be dismissed because there is no occasion for the Owner/Manager to held liable for the acts or omissions of General Contracting. Alternatively, any grant of indemnification is premature as there is no determination of liability. Further, General Contracting obtained an appropriate insurance policy, and the Owner/Manger never answered Northfield Insurance's offer to provide a defense on a co-primary basis. Any damages for failing to procure insurance is limited to the cost of any increased premiums, which has not been demonstrated.

The Owner/Manager opposes General Contracting's request to dismiss the former's cross-claims, maintaining that plaintiff's accident arose out of General Contracting's work under the Contract and Proposal. And, plaintiff's claim arose out of General Contracting's work and its failure to leave the area safe for pedestrians. In the event the Owner/Manager is held liable for plaintiff's injuries, General Contracting is required to indemnify it.

In reply, General Contracting argues that any debris in the corridor is of unknown origin.

Discussion

A defendant who moves for summary judgment in a trip-and-fall action "has the initial burden of making a prima facie demonstration that it neither created the hazardous condition, nor had actual or constructive notice of its existence" (Briggs v. Pick Quick Foods, Inc., 103 A.D.3d 526, 962 N.Y.S.2d 46 [1st Dept 2013] ; Pfeuffer v. New York City Housing Auth., 93 A.D.3d 470, 940 N.Y.S.2d 566 [1st Dept 2012] ; Ross v. Betty G. Reader Revocable Trust, 86 A.D.3d 419, 927 N.Y.S.2d 49 [1st Dept 2011] ). Once a defendant establishes prima facie entitlement to such relief as a matter of law, the burden shifts to plaintiff "to raise a triable issue of fact as to the creation of the defect or notice thereof" (Briggs v. Pick Quick Foods, Inc., 103 A.D.3d 526, 962 N.Y.S.2d 46, supra, citing Rodriguez v. 705–7 E. 179th St. Hous. Dev. Fund Corp., 79 A.D.3d 518, 913 N.Y.S.2d 189 [1st Dept 2010], citing Smith v. Costco Wholesale Corp., 50 A.D.3d 499, 500 [2008] ).

Where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action (CPLR § 3212[b] ; Madeline D'Anthony Enterprises, Inc. v. Sokolowsky, 101 A.D.3d 606, 957 N.Y.S.2d 88 [1st Dept 2012] ). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Alvord and Swift v. Steward M. Muller Constr. Co., 46 N.Y.2d 276, 281–82, 413 N.Y.S.2d 309 [1978] ; Carroll v. Radoniqi, 105 A.D.3d 493, 963 N.Y.S.2d 97 [1st Dept 2013] ). The opponent "must assemble and lay bare...