Castillo v. Port Auth. of N.Y. & N.J., 2016–01320

• Court: New York Supreme Court Appellate Division
• Citation: 72 N.Y.S.3d 582,159 A.D.3d 792
• Decision Date: 14 March 2018
• Parties: Lourdes CASTILLO, plaintiff, v. PORT AUTHORITY OF NEW YORK and New Jersey, respondent, et al., defendants, Cristi Cleaning Service Corp., et al., appellants.
• Docket Number: 2016–01320,Index No. 22684/11

159 A.D.3d 792
72 N.Y.S.3d 582

Lourdes CASTILLO, plaintiff,
v.
PORT AUTHORITY OF NEW YORK and New Jersey, respondent, et al., defendants,

Cristi Cleaning Service Corp., et al., appellants.

2016–01320
Index No. 22684/11

Supreme Court, Appellate Division, Second Department, New York.

Argued November 2, 2017
March 14, 2018

Stewart H. Friedman, Garden City, N.Y. (Robert F. Horvat of counsel), for appellant Cristi Cleaning Service Corp.

Morris Duffy Alonso & Faley, New York, N.Y. (Elizabeth A. Filardi, Andrea M. Alonso, and Iryna S. Krauchanka of counsel), for appellant Five Star Parking.

James M. Begley, New York, N.Y. (Cheryl N. Alterman of counsel), for respondent.

REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

159 A.D.3d 792

In an action to recover damages for personal injuries, the defendant Cristi Cleaning Service Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (D.Hart, J.), entered December 16, 2015, as denied its motion for summary judgment dismissing the amended verified complaint and all cross claims insofar as asserted against it, and the defendant Five Star Parking separately appeals, as limited by its brief, from so much of the same order as denied its motion for summary judgment dismissing the amended verified complaint and all cross claims insofar as asserted against it.

ORDERED that the order is modified, on the law, (1) by deleting the provisions thereof denying those branches of the motion of the defendant Cristi Cleaning Service Corp. which were for summary judgment dismissing the amended verified complaint and the cross claims of the defendant Port Authority of New York and New Jersey sounding in contribution and common-law indemnification insofar as asserted against it, and substituting therefor provisions granting those branches of the motion, and (2) by deleting the provisions thereof denying those branches of the motion of the defendant Five Star Parking which were for summary judgment dismissing the amended verified complaint and the cross claims of the defendant Port Authority of New York and New Jersey sounding in contribution and common-law indemnification insofar as asserted against it, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff, who was employed by an airline operating at LaGuardia Airport (hereinafter LaGuardia), allegedly was injured when she slipped on a patch of ice in the employee parking lot (hereinafter the parking lot) at LaGuardia as she was walking to her car. She commenced this action to recover damages for personal injuries, alleging common-law negligence and violation of Labor Law § 200.

Pursuant to a contract with the defendant Port Authority of New York and New Jersey (hereinafter the Port Authority), the

159 A.D.3d 793

defendant Cristi Cleaning Service Corp. (hereinafter Cristi) had a contractual duty to perform janitorial and cleaning services and certain snow removal services which did not include removing snow and ice from the parking lot. Pursuant to a separate contract with the Port Authority, the defendant Five Star Parking (hereinafter Five Star) managed the parking lot. Five Star's contractual duties included, among other things, monitoring the condition of the parking lot, reporting snowy or icy conditions to the Port Authority, and removing snow and ice from certain exit lanes, but it did not have a duty to remove snow or ice from the parking lot.

In its verified answer, the Port Authority, among other things, asserted cross claims against Cristi and Five Star for contractual indemnification, common-law indemnification, breach of contract to procure liability insurance, and contribution. After discovery, Cristi and Five Star separately moved for summary judgment dismissing the amended verified complaint and all cross claims insofar as asserted against each of them, contending that they did not have a duty to remove snow from the parking lot, and that they did not owe the plaintiff a duty of care. The Supreme Court denied Cristi's motion, concluding that Cristi had failed to demonstrate, prima facie, that its acts or omissions in its snow removal near the parking lot did not create the alleged icy condition on which the plaintiff fell. The court also denied Five Star's motion, concluding that Five Star had failed to demonstrate, prima facie, that it did not violate a duty "to plaintiff to take proper action by notifying the Port Authority of the alleged hazardous condition."

A contractual obligation, standing alone, does not generally give rise to tort liability in favor of a third party unless one of three exceptions applies: "(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] 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, 746 N.Y.S.2d 120, 773 N.E.2d 485 [citation and internal quotation marks omitted]; see Diaz v. Port Auth. of N.Y. & NJ , 120 A.D.3d 611, 611–612, 990 N.Y.S.2d 882 ; Rudloff v. Woodland Pond Condominium Assn. , 109 A.D.3d 810, 810, 971 N.Y.S.2d 170 ).

The exceptions alleged in the pleadings with respect to Cristi and Five Star were that they launched an instrument of harm, and that their respective agreements with the Port Authority were comprehensive and exclusive such that they entirely

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