Hammond-Warner v. US, CV 91-1699.
| Decision Date | 20 August 1992 |
| Docket Number | No. CV 91-1699.,CV 91-1699. |
| Citation | 797 F. Supp. 207 |
| Parties | Marcella HAMMOND-WARNER, Plaintiff, v. UNITED STATES of America and Alan D. Cardinale, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Hayt, Hayt & Landau by Christopher J. Longman, Great Neck, N.Y., for plaintiff.
Andrew J. Maloney, U.S. Atty. by Warren Ausubel, Asst. U.S. Atty., Brooklyn, N.Y., for defendant U.S.
James A. Schondebare, Southold, N.Y., for defendant Cardinale.
Marcella Hammond-Warner, plaintiff in the above-referenced action, alleges that she sustained injuries after slipping and falling on a slushy substance on the sidewalk immediately in front of the main entrance to the United States Post Office located in the Jamesport Shopping Center, Route 25, Jamesport, New York. Plaintiff has brought suit against defendants Alan A. Cardinale ("Cardinale"), the owner of the shopping center, and the United States as lessee of the post office. In addition, Cardinale has brought a cross-claim against the United States, alleging that under the terms of the lease between him and the United States Postal Service (the "lease"), the Postal Service is responsible for the maintenance of the sidewalk and therefore is responsible for any injury that plaintiff may have suffered in this case. Now before the Court is the United States' motion for summary judgment against plaintiff and Cardinale, pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated below, the motion is granted.
Plaintiff alleges that on October 20, 1988, she slipped and fell on the sidewalk immediately outside the main entrance of the Jamesport Post Office on a tan-colored slushy liquid approximately twelve inches in diameter. The United States contends that it cannot be held liable for this alleged accident because: (1) by the terms of its lease, the Postal Service did not have possession and control of the sidewalk outside the post office; and (2) the Postal Service had neither actual nor constructive notice of the slushy substance that allegedly caused plaintiff's fall.
The lease between Cardinale and the Postal Service identifies the demised premises as:
a one story masonry building and which property contains or will contain areas and spaces, improvements and appurtenances as follows: Demised premises are described ... in attached floor plan.
The above-mentioned floor plan contains a sketch of only the post office building. It does not include sidewalks, parking areas, or any other area.
The Maintenance Rider to the lease includes the following terms:
At her deposition, plaintiff testified that she cannot identify the slushy substance on which she allegedly slipped, nor does she know how it got on the sidewalk, or how long it was there prior to her fall. Moreover, there were no witnesses to the alleged accident, and plaintiff has failed to produce any evidence regarding these matters.
The lease for the post office was executed in New York and is therefore interpreted pursuant to New York law. In re Shangri-La Nursing Center, Inc., 31 B.R. 367, 370 (Bankr.E.D.N.Y.1983). Under New York law, contracts are interpreted so as to give effect to the intent of the parties as expressed in the entire contract, and such interpretation is made by the court as a matter of law when the contract language is unambiguous. Cruden v. Bank of New York, 957 F.2d 961, 976 (2d Cir.1992); Metropolitan Life Ins. Co. v. RJR Nabisco, Inc., 906 F.2d 884, 889 (2d Cir.1990). Moreover, courts must examine only the contract itself to determine if it is unambiguous, American Home Prods. Corp. v. Liberty Mutual Ins. Co., 748 F.2d 760, 765 (2d Cir.1984); Chimart Assoc. v. Paul, 66 N.Y.2d 570, 498 N.Y.S.2d 344, 346, 489 N.E.2d 231, 233 (Ct.App.1986), and if it is unambiguous, extrinsic evidence regarding the intent of the parties is not admissible. Metropolitan Life Ins. Co., 906 F.2d at 889. Where, however, the court determines that the contract language is ambiguous, interpretation of that language becomes a question for the jury. Werbungs Und Commerz Union Austalt v. Collectors' Guild Ltd., 930 F.2d 1021, 1025-26 (2d Cir.1991).
The United States first notes that under the common law, landlords have the duty to inspect and repair common use areas, such as the sidewalk outside the post office. See Loeser v. Nathan Hale Gardens, Inc., 73 A.D.2d 187, 425 N.Y.S.2d 104, 107 (1st Dep't 1980). Moreover, in order to hold a tenant liable in a case such as this, New York courts have consistently required a plaintiff to show that the tenant either created the hazard that caused the accident or had "possession or control" of the property where the alleged accident took place. See McGill v. Caldors, Inc., 135 A.D.2d 1041, 522 N.Y.S.2d 976, 977-78 (3d Dep't 1987) (). Therefore, the United States argues, because the lease, in conjunction with the attached floor plan, does not state that the Postal Service was granted possession or control of the sidewalk adjoining the post office, summary judgment should be awarded in its favor.
In response, plaintiff and Cardinale note that both the lease and the Maintenance Rider define the demised premises as including "appurtenances to such premises." Moreover, the definition of "demised property" in the Maintenance Rider makes no reference to the floor plan. Subsection (b) of the Maintenance Rider states that "the Postal Service shall be responsible for ordinary repairs to and maintenance of the demised premises except for those repairs that are specifically made the responsibility of the lessor...." Subsection (c)(1) states that "the lessor shall be responsible for repairs to all common or joint use areas that may be included as part of this lease agreement...." (emphasis added). Therefore, plaintiff and Cardinale contend that the Postal Service is responsible for the maintenance of the demised premises, including the "appurtenant" sidewalk. See Dopico-Fernandez v. Grand Union Supermarket, 841 F.2d 11, 14 (1st Cir.) (), cert. denied, 488 U.S. 864, 109 S.Ct. 164, 102 L.Ed.2d 135 (1988); Ruggiero v. Long Island Railroad, 161 A.D.2d 622, 555 N.Y.S.2d 401, 402 (2d Dep't 1990) (); 74 N.Y.Jur.2d Landlord and Tenant § 162 ().
If the lease provides for the Postal Service to maintain the appurtenant sidewalk, then it had sufficient "control and possession" of that area to be held liable to a third-party who is injured due to any breach of that duty. See Bennett v. McGoldrick-Sanderson Co., 15 Wash.2d 130, 129 P.2d 795 (1942) (). Accordingly, the United States' motion for summary judgment on the ground that the Postal Service never assumed possession and control of the appurtenant sidewalk is denied; examining only the four corners of the lease agreement, this Court finds that, at a minimum, plaintiff and Cardinale have shown that the lease is ambiguous as to whether the Postal Service accepted responsibility for maintenance to the sidewalk. Therefore that issue must be resolved by the jury.1
In order to impose liability on a defendant for a slip and fall accident, the plaintiff must establish, as part of her prima facie case, that the defendant had actual or constructive notice of the alleged condition that caused the fall. Benware v. Big V Supermarkets, Inc., 177 A.D.2d 846, 576 N.Y.S.2d 461, 462-63 (3d Dep't 1991); Shildkrout v. Board of Educ., 173 A.D.2d 603, 570 N.Y.S.2d 183, 183 (2d Dep't 1991), leave to appeal den., 78 N.Y.2d 858, 575 N.Y.S.2d 454, 580 N.E.2d 1057 (1991); Lewis v. Metropolitan Transp. Auth., 99 A.D.2d 246, 472 N.Y.S.2d 368, 371 (1st Dep't), aff'd, 64 N.Y.2d 670, 485 N.Y.S.2d 252, 474 N.E.2d 612 (Ct.App.1984). A defendant can only be held liable if it failed to show reasonable care to remedy a dangerous or defective condition after it obtained such notice. Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 647, 492 N.E.2d 774, 775 (Ct.App.1986); Rabat v. GNAC Corp., 180 A.D.2d 540, 579 N.Y.S.2d 407, 408 (1st Dep't 1992).
Plaintiff does not claim that the Postal Service had actual notice of the alleged slushy condition. Thus, she must establish that the Postal Service should be charged with constructive notice.
"To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient...
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