Lopez v. New York Life Ins. Co.

Decision Date08 December 2011
Citation90 A.D.3d 446,2011 N.Y. Slip Op. 08813,934 N.Y.S.2d 136
PartiesBernardo LOPEZ, Plaintiff–Respondent, v. NEW YORK LIFE INSURANCE COMPANY, et al., Defendants–Respondents–Appellants.New York Life Insurance Company, Third–Party Plaintiff–Respondent–Appellant, v. Jones Lang LaSalle Americas, Inc., Third–Party Defendant–Appellant–Respondent.
CourtNew York Supreme Court — Appellate Division

OPINION TEXT STARTS HERE

Hoey, King & Epstein, New York (Andrew Sfouggatakis of counsel), for New York Life Insurance Company, respondent-appellant.

Cerussi & Spring, White Plains (Kevin P. Westerman of counsel), for Collins Building Services, Inc., respondent-appellant.

McGaw, Alventusa & Zajac, Jericho (Ross Masler of counsel), for appellant-respondent.Faber & Troy, Woodbury (Salvatore V. Agosta of counsel), for respondent.TOM, J.P., SAXE, DeGRASSE, FREEDMAN, ROMÁN, JJ.

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered June 25, 2010, which, in this personal injury action arising from a slip and fall on a puddle of water in a building owned by defendant/third-party plaintiff New York Life Insurance Company (NYL) and managed by third-party defendant Jones Lang LaSalle Americas, Inc. (JLL), to the extent appealed from as limited by the briefs, denied NYL's motion for summary judgment dismissing the complaint and all cross claims against it and for summary judgment on its claims for contractual and common-law indemnification against JLL and the maintenance contractor defendant Collins Building Services, Inc., denied Collins's motion for summary judgment dismissing the complaint and all cross claims against it, and denied JLL's motion for summary judgment dismissing the third-party complaint and for summary judgment on its counterclaim for contractual indemnification against NYL, affirmed, without costs.

Plaintiff allegedly slipped in a large puddle of water that appeared to be flowing out from under a locked men's room door in a building owned by NYL, managed by JLL, and for which Collins provided janitorial services. The evidence submitted by NYL, Collins and JLL was insufficient to establish as a matter of law that they did not have constructive notice of the hazard. In particular, they failed to provide evidence regarding the inspection procedures followed on the date of the accident or the duration and source of the hazard ( see Castillo v. New York City Tr. Auth., 69 A.D.3d 487, 891 N.Y.S.2d 645 [2010]; Roy v. City of New York, 65 A.D.3d 1030, 1031, 885 N.Y.S.2d 108 [2009] ).

Nor do the submissions of maintenance contractor Collins entitle it to summary judgment dismissing the claim against it on the ground that it owed no duty to plaintiff. A contractor may assume a duty of care toward third parties “where the contracting party, in failing to exercise reasonable care in the performance of his duties, ‘launche[s] a force or instrument of harm’ ( Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002], quoting Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 168, 159 N.E. 896 [1928] ). In this case, the hazard could have been created, for instance, through a failure to correct a drip into a stoppered sink or a failure to notice and report a leak. On a summary judgment motion, the burden is on the movant to demonstrate in the first instance entitlement to judgment as a matter of law ( see Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 390 N.E.2d 298 [1979] ). Under circumstances such as these, where plaintiff is unable to elaborate on how Collins “launched a force or instrument of harm” because defendants failed to explain how this undisputed hazardous condition occurred, the burden of the moving defendant cannot be satisfied by relying solely on the limited duty owed by a contractor, or by the assertion that its employees were not present in the building at the time of the accident. Collins' submissions were insufficient to make a showing that it did not launch any force or instrument of harm, and its failure to do so precludes the dismissal of the claim against it on this motion.

NYL's claims for common-law and contractual indemnification against JLL and Collins cannot be resolved summarily until a determination is made as to their negligence, if any ( see e.g. Prenderville v. International Serv. Sys., Inc., 10 A.D.3d 334, 338, 781 N.Y.S.2d 110 [2004]; Gomez v. National Ctr. for Disability Servs., 306 A.D.2d 103, 762 N.Y.S.2d 51 [2003] ). Similarly, JLL's indemnification claims against NYL cannot be resolved at this juncture.

We have considered appellants' remaining arguments and find them unavailing.

All concur except DeGRASSE and FREEDMAN, JJ. who dissent in part in a memorandum by DeGRASSE, J. as follows:

DeGRASSE, J. (dissenting in part).

I respectfully dissent because I believe summary judgment should have been granted to the extent of dismissing (1) all of plaintiff's claims against defendant Collins Building Services, Inc. and (2) the claims for contribution asserted against Collins by defendant/third-party plaintiff New York Life Insurance Company, and third-party defendant Jones Lang LaSalle Americas, Inc. (JLL).

Plaintiff was injured when he slipped in a pool of water on the floor of New York Life's office building. Collins provided cleaning services in the building pursuant to a written agreement with New York Life. Standing alone, a...

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