Prenderville v. International Service Systems, Inc.

• Decision Date: 26 August 2004
• Docket Number: 3836.
• Citation: 2004 NY Slip Op 06449,781 N.Y.S.2d 110,10 A.D.3d 334
• Parties: AMY PRENDERVILLE et al., Appellants, v. INTERNATIONAL SERVICE SYSTEMS, INC., et al., Respondents, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

10 A.D.3d 334

781 N.Y.S.2d 110

2004 NY Slip Op 06449

AMY PRENDERVILLE et al., Appellants, v. INTERNATIONAL SERVICE SYSTEMS, INC., et al., Respondents, et al., Defendant.

3836.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided August 26, 2004.

Order, Supreme Court, New York County (Faviola A. Soto, J.), entered January 9, 2003, which granted defendants-respondents' motion and cross motion for summary judgment dismissing the complaint and all cross claims, unanimously reversed, on the law, without costs, the motion denied, the complaint and cross claims reinstated as against said defendants, and the matter remanded for further proceedings.

Plaintiff Amy Prenderville sustained personal injuries as a result of a slip-and-fall accident at the corner of Broadway and Cortlandt Street on January 16, 1996. Plaintiff, and her husband suing derivatively, commenced the instant action against defendants O&Y Liberty Plaza Co., the owner of the adjacent building at One Liberty Plaza, and International Service Systems, Inc. (ISS), the maintenance contractor hired by O&Y. Also named a defendant was the City of New York, as owner of the public sidewalk and street where the accident occurred.^* The complaint alleges that ISS and O&Y created a hazardous condition on the street corner by their negligent snow removal methods. Both defendants answered the complaint, and O&Y cross-claimed against ISS for contribution and indemnification.

In her deposition testimony, the injured plaintiff stated that on the day of the accident, she was working at One Liberty Plaza and left the premises at 12:15 p.m. She noticed that snow from a recent heavy snowfall "was banked up" near the street edge of the sidewalks, but the remainder of the sidewalk was clear and dry. Plaintiff walked to the corner of Broadway and Cortlandt Street, where she stepped into the disability curb cut to wait for the crossing light. The curb cut was made of "reddish gray marble," rather than the typical concrete, and appeared to be wet or had a "sheen" to it. As plaintiff stood in the curb cut, she noticed large puddles on each side of it, which she believed came from the melting banks of snow along the edge of the sidewalk.

When the light changed, plaintiff took two steps and slipped on the surface of the curb cut. Plaintiff landed in a puddle that was icy and slushy. As she lay in the puddle, she felt a portion of the curb cut with her hand and felt "granular slushy ice" that was "more in the treads of the curb cut." She further testified that "[i]t didn't look like a sheet of ice, just like there was some thin ice within the treads . . ."

The maintenance service contract required ISS to: "Remove snow from sidewalks, plaza park area and Building entrances and approaches . . . and remove snow at street crosswalks adequate for pedestrian access, all as and when required." In relevant part, the indemnity provision of the service contract required ISS to indemnify and save harmless O&Y from any personal injury claim arising out of the former's maintenance work "and which shall be in whole or in part due to the result of any act, omission, negligence, carelessness or unlawful conduct" of ISS.

After discovery, ISS moved for summary judgment, arguing that it did not owe the injured plaintiff a duty of care by virtue of its service contract with O&Y that even if it owed such a duty, it was not liable due to the absence of actual or constructive notice of the hazard; and that O&Y's cross claims should be dismissed because it was not liable for these injuries, and because the indemnification clause was void under General Obligations Law § 5-322.1. O&Y cross-moved for summary judgment, citing its contractor's proper snow removal efforts and the lack of notice. Alternatively, O&Y moved for summary judgment on its cross claims against ISS for common-law and contractual indemnification.

Supreme Court granted the motion and cross motion for summary judgment dismissing the complaint and cross claims against both ISS and O&Y, and severed those claims from the remaining claims against the City. The court ruled that ISS and O&Y had made a prima facie showing that "they did not create or make worse the condition, and did not have advance actual or constructive notice of the condition," and that plaintiffs failed to raise a triable issue of fact.

On appeal, plaintiffs argue that both ISS and O&Y failed to establish entitlement to judgment as a matter of law, and that, in any event, the evidence in the record raised a triable issue as to whether these defendants had created or exacerbated a hazardous condition by their negligent snow removal methods. We agree.

Contrary to defendants' arguments and Supreme Court's holding, we find that ISS and O&Y failed to meet their initial burden of making a prima facie showing of entitlement to judgment as a matter of law (see Dappio v Port Auth. of N.Y. & N.J., 299 AD2d 310, 311-312 [2002]). A property owner, such as O&Y here, generally owes no duty to pedestrians to remove snow and ice that naturally accumulates on the sidewalk in front of its premises, but if it undertakes to do so, it may be held liable in negligence where its acts create or increase the hazards (Jiuz v City of New York, 244 AD2d 298 [1997]; see also Nadel v Cucinella, 299 AD2d 250, 251-252 [2002]).

With respect to ISS, although "a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party" (Espinal...