Haskin v. United States, Andifred Realty Corp.

• Decision Date: 30 June 2015
• Docket Number: 10-CV-5089 (MKB)
• Parties: GREGORY HASKIN and STEPHANIE BUCK HASKIN, Plaintiffs, v. UNITED STATES OF AMERICA, ANDIFRED REALTY CORP. and PRECISE DETAILING LLC, Defendants.
• Court: U.S. District Court — Eastern District of New York

GREGORY HASKIN and STEPHANIE BUCK HASKIN, Plaintiffs,
v.
UNITED STATES OF AMERICA, ANDIFRED REALTY CORP.
and PRECISE DETAILING LLC, Defendants.

10-CV-5089 (MKB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

June 30, 2015

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

Plaintiffs Gregory Haskin and Stephanie Buck Haskin, husband and wife, bring the above-captioned action against Defendant the United States of America (the "United States") for negligence, in violation of the Federal Tort Claims Act ("FTCA"), and against Defendant Andifred Realty Corp. ("Andifred") and Precise Detailing LLC ("Precise") for negligence under New York common law. Plaintiffs seek damages for injuries sustained by Gregory Haskin when he allegedly slipped and fell outside of the Glen Head Post Office on December 21, 2009. Currently before the Court are Defendants' motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons discussed below, the Court grants Andifred's and Precise's motions for summary judgment, and denies the United States' motion for summary judgment.

I. Background

a. Factual background

The Court assumes familiarity with the parties and background of this action, set forth in Haskin v. United States, No. 10-CV-5089, 2013 WL 4761110, at *1-3 (E.D.N.Y. Sept. 4, 2013)

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vacated and remanded, 569 F. App'x 12 (2d Cir. 2014). Additional facts necessary to decide the motions for summary judgment are presented below.

i. The parties

At all times relevant to this action, Defendant Andifred owned the premises used for retail and office space, located at 240 Glen Head Road in Glen Head, New York.¹ (Andifred 56.1 ¶ 1; Dep. of Andifred Realty Corp. by Fred Connan dated Feb. 15, 2012, annexed to Decl. of Gregory M. LaSpina in Opp'n to Defs. Mots. for Summary Judgment ("LaSpina Decl.") as

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Ex. A² ("Connan Dep.") 8:22-9:14.) The space, located in a "strip mall" type complex, is leased to the United States Postal Service ("USPS"), which operates the Glen Head Post Office ("Post Office") in that location. (Andifred 56.1 ¶¶ 2-3; U.S. 56.1 ¶ 2; Pl. Counter 56.1 ¶ 29; see generally Lease Agreement between Andifred and USPS regarding 240 Glen Head Road ("Lease Agreement"), annexed to Decl. of Kevin J. Spencer in support of Andifred Mot. for Summary Judgment ("Spencer Decl.") as Ex. A.) Andifred is an out-of-possession owner of the location, though it does provide a "handyman," Gerald "Jerry" McAree, to perform various maintenance tasks at the property and answer questions that tenants might raise. (Andifred 56.1 ¶ 10; Connan Dep. 15:10-16:23; Dep. of Postmaster Kenneth Washington dated Feb. 15, 2012, annexed to LaSpina Decl. as Ex. B ("Washington Dep.") 73:8-74:4; Lease Agreement, annexed to Spencer Decl. as Ex. A, at ECF No. 29.) Precise was a company that provided, among other services, snow removal and, as discussed below in greater detail, was engaged to remove snow and ice at the Post Office. (Dep. of Anthony Petito, annexed to Schumacher Decl. as Ex. B ("Petito Dep.") 6:11-25, 9:3-16.) Anthony Petito was the president and sole partner of Precise. (Aff. of Anthony Petito in Support of Mot. for Summary Judgment, Docket Entry No. 62-3 ("Petito Aff.") ¶ 1.)

The Post Office provides customer service daily from Monday through Saturday,³ beginning at 9:00 AM. (U.S. 56.1 ¶ 3.) On weekdays, Fred Nizzari and Jane Sloboda, USPS employees, typically arrived at the Post Office at approximately 5:15 AM and 5:30 AM,

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respectively. (Pl. Counter 56.1 ¶¶ 34-35; Washington Dep. 19:19-23:5.) Nizzari typically opened the front door to the Post Office at 5:30 AM, so customers could access post office boxes located inside the lobby of the Post Office prior to the opening of customer service. (Pl. Counter 56.1 ¶¶ 31-33; Washington Dep. 23:11-14.) Typically, at 7:30 AM, Nizzari would exit the main entrance of the Post Office to collect mail from mailboxes located outside the Post Office, near its front doors. (Washington Dep. 26:9-27:15.) Between 7:30 AM and 8:00 AM, Kenneth Washington, the Postmaster of the Glen Head Post Office, would arrive. (Washington Dep. 28:23-29:5.)

Plaintiff Gregory Haskin ("Haskin"), married to Plaintiff Stephanie Buck Haskin, frequently uses the Post Office and walks through the parking lot and across the sidewalk in front of it. (U.S. 56.1 ¶¶ 17-19.)

ii. Snow and ice removal arrangements

Plaintiffs and Andifred contend that at the time of the incident, pursuant to its lease with Andifred, the USPS was responsible for the removal of snow and ice at the Post Office. (Andifred 56.1 ¶ 4; Pl. Counter 56.1 ¶ 30; Connan Dep. 17:9-13; Aff. of Fred Connan in Support of Mot. for Summary Judgment, annexed to Spencer Decl. as Ex. G ("Connan Aff.") ¶¶4-5.) Pursuant to the terms of the lease, the USPS "is responsible for ordinary repairs to, and maintenance of the demised premises except for those repairs that are specifically made the responsibility of the Lessor in this Lease." (Lease Agreement, at ECF No. 19.) Snow removal is not listed as the Lessor's responsibility. (Id.) McAree, the handyman, did not perform snow and ice removal. (Andifred 56.1 ¶ 10; Connan Dep. 17:14-21.)

In late 2009, the USPS engaged Precise to perform snow and ice removal services on the Post Office property between November 15, 2009 and November 14, 2010. (See

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Order/Solicitation/Officer/Award form ("Contract"), effective date Nov. 15, 2009, annexed to Decl. of Robert W. Schumacher in Support of U.S. Mot. for Summary Judgment ("Schmacher Decl.") as Ex. F, 1-2; Andifred 56.1 ¶ 5; U.S. Reply 56.1 ¶ 30.) After drafting the terms of this snow and ice removal contract, the USPS signed it and sent it to Precise. (Contract 1; Washington Dep. 38:8-10, 41:5-10.) The contract required Precise to automatically remove snow and ice following two inches or more of snowfall, and to perform snow and ice removal when called even if it had snowed fewer than two inches. (Contract 2; Petito Dep. 25:19-26:12; Washington Dep. 49:4-7; Petito Aff. ¶ 5.) Petito did not immediately sign the contract for Precise, but he acknowledged receiving it and having signed a contract later. (Contract 1; Washington Dep. 42:23-43:9; Petito Dep. 10:18-19:15, 30:9-33:24, 55:21-24.) In December of 2009, Petito began snow removal services at the Post Office. (U.S. 56.1 ¶¶ 5-6.) Petito personally handled all of the snow removal at the Post Office. (Petito Dep. 29:17-19.)

If snow removal had been performed over a weekend, on Monday mornings, Postmaster Washington would visually inspect the walkway in front of the Post Office to ensure that the snow had been removed and ice melt applied to the area. (Andifred 56.1 ¶ 7; Pl. Counter 56.1 ¶ 40; Washington Dep. 48:2-8, 56:18-58:4.) Postmaster Washington had also instructed Nizzari and Sloboda to ensure that, if snow had fallen over a weekend, snow removal had been performed upon their arrival to the Post Office. (Washington Dep. 57:10-24.) The USPS kept shovels and supplies to melt snow and ice, and employees would occasionally remove snow from the Post Office property when necessary, including when the snow removal was unsatisfactory. (Andifred 56.1 ¶¶ 6, 8; Pl. Counter 56.1 ¶ 38; Washington Dep. 49:21-50:12, 58:5-18.) If, upon his arrival, there was snow or ice to be removed from in front of the Post Office, Nizzari was to shovel or apply ice-melt chemical to "get to a clear path" to the mailboxes

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on the exterior of the Post Office. (Washington Dep. 58:19-59:18.)

iii. December 19 and December 20, 2009 snowfall

Between Saturday, December 19, 2009, and Sunday, December 20, 2009, approximately fifteen inches of snow fell outside the Post Office. (U.S. 56.1 ¶ 8.) At approximately 1:00 AM on Sunday morning, Petito plowed the snow from the Post Office's parking lot, cleared the sidewalk, and put ice-melt chemical on the "entire property." (U.S. 56.1 ¶ 9.) Petito returned and performed the same snow and ice removal process at approximately 5:00 AM, and 4:00 or 5:00 PM on Sunday. (U.S. 56.1 ¶¶ 10-11; Petito Dep. 29:20-34:19; Petito Aff. ¶ 3.) By the morning of Monday, December 21, 2009, it was no longer snowing. (U.S. 56.1 ¶ 20.)

iv. Monday, December 21, 2009

At approximately 5:00 AM on December 21, 2009, Petito visited the Post Office and Defendants contend that, at that time, he applied an ice-melt chemical — calcium chloride — to the walkways and the "entire property."⁴ (Andifred 56.1 ¶¶ 20-21; U.S. 56.1 ¶¶ 12-14; Petito Dep. 34:20-38:9.) Petito testified that, at the time, he noted some icy spots, and applied ice-melt

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chemical to the path leading directly to the main entrance of the post office. (Petito Dep. 35:4-36:10, 37:5-38:9.) He had not been called back by USPS employees, but returned on his own notion to reapply ice-melt chemical as a "standard precaution" following the heavy snowfall. (Id. at 35:4-36:19.) No postal employee cleared the snow or ice that morning. (U.S. 56.1 ¶ 15.) Between 5:00 AM and 10:00 AM, no one contacted Petito to request that he return to the Post Office. (Petito Aff. ¶ 4.) When Postmaster Washington arrived at approximately 8:00 AM that morning, Nizzari and Sloboda, and other employees, were at the Post Office already. (Pl. Counter 56.1 ¶ 44.)

On December 21, 2009, Haskin arrived at the Post...