Uron v. GRI Sunset Plaza, LLC

Citation2021 NY Slip Op 33519 (U)
Decision Date10 March 2021
Docket NumberMot. Seq. Nos. 002 MD,003 MD,004 MD,CAL. No. 202000653OT,Index No. 608576/2018
CourtUnited States State Supreme Court (New York)
PartiesSHAWN URON, Plaintiff, v. GRI SUNSET PLAZA, LLC, KE MANAGEMENT LLC, POWERHOUSE PAVPWG & DRAINAGE, LLC AND ADVANCED PAVEMENT GROUP CORP. d/b/a POWERHOUSE PAVING, Defendants.

Unpublished Opinion

MOTION DATE 10/14/2020

MOTION DATE 12/3/2020

ADJ. DATE 12/17/2020

GRUENBERG KELLY DELLA Attorney for Plaintiff

FRANK A. POLACCO & ASSOCIATES Attorney for Defendants GRI Sunset Plaza

AHMUTY DEMERS & MCMANUS Attorney for Defendant KE Management

VICTOR J. NATALE, ESQ. Attorney for Defendant

PRESENT: Hon. JOSEPH FARNET1, Acting Justice of the Supreme Court

SHORT FORM ORDER

Joseph Farneti, Judge

Upon the following papers read on these e-filed motions for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by defendant/third GRI Sunset Plaza dated September 14, 2020, by defendant/third-party defendant Advanced Pavement dated October 28, 2020. and by defendant KE Management, LLC, dated November 18, 2020; Notice of Cross Motion and supporting papers ___; Answering Affidavits and supporting papers by defendant Advanced Pavement dated October I, 2020, by plaintiff dated October 7, 2020, by defendant/third-party plaintiff GR! Sunset Plaza dated November 5, 2020, by plaintiff dated January 21, 2021, by GRI Sunset Plaza dated November 23 2020, by defendant/ third-party defendant Advanced Pavement dated December 9. 2020. by plaintiff dated January 21. 2021; Replying Affidavits and supporting papers by defendant/third-party plaintiff GRI Sunset Plaza dated October 7, 2020, by defendant/third-party defendant Advanced Pavement dated November 20. 2020, by defendant/third-party defendant Advanced Pavement dated January 27, 2021, by defendant KE Management, LLC. dated January 26, 2021, by defendant/third-party plaintiff GRI Sunset Plaza dated January 26. 2021 ___; Other Memoranda of Law ___; it is,

ORDERED that the motion (002) by defendant/third-party plaintiff GRI Sunset Plaza, LLC, the motion (003) by defendant/third-party defendant Advanced Pavement Group Corp., and the motion (004) by defendant KE Management, LLC, are consolidated for the purposes of this determination; and it is

ORDERED that the motion by defendant/third-party plaintiff GRI Sunset Plaza, LLC for, inter alia. summary judgment on its third-party complaint is denied; and it is

ORDERED that the motion by defendant/third-party defendant Advanced Pavement Group Corp. for, inter alia, summary judgment dismissing the complaint and the cross claims against it is denied; and it is

ORDERED that the motion by defendant KE Management, LLC for, inter alia, summary judgment dismissing the complaint against it is denied.

This is an action to recover damages for injuries allegedly sustained by plaintiff, Shawn Uron, on January 18, 2018, as a result of a slip and fall that occurred in the parking lot of the Sunset Plaza Shopping Center Union Bank located in North Babylon, New York. The accident allegedly occurred when plaintiffs left foot slipped on black ice as he stepped from the running board of his vehicle onto to the asphalt surface of the parking lot. As a result, plaintiff allegedly fell from the open door of his vehicle, landed on his right shoulder and left arm, and settled on to his stomach. Defendant/third-party plaintiff GRI Sunset Plaza, LLC ("GRI"), is the owner of the parking lot. Prior to the accident, GRI retained defendant/third-party defendant Powerhouse Paving & Drainage, LLC, and Advanced Pavement Group Corp. d/b/a Powerhouse Paving ("Advanced Pavement ") to perform snow and ice removal services at the parking lot. Defendant KE Management, LLC ("KE"), the property manager for the premises, was also named as a defendant to the action. By way of his amended complaint, plaintiff alleges, inter alia, that defendants' were negligent in their ownership, control, and maintenance of the subject parking lot, and that they caused or created the hazardous condition on which he slipped by improperly clearing and removing snow and ice therefrom.

Defendants joined issue denying plaintiff claims and asserting affirmative defenses and cross claims against each other. Thereafter, GRI commenced a third-party action for indemnification and contribution against Advanced Pavement. GRI now moves for summary judgment on its third-party complaint, arguing that plaintiff injuries were solely caused by Advanced Pavement's failure to adequately remove snow and ice from the subject parking lot, and that Advanced Pavement is contractually obligated to indemnify and defend it against plaintiffs claims. In addition, GRI asserts that Advanced Pavement breached the provision of the snow removal services agreement requiring it to procure general liability insurance naming GRI as a beneficiary thereto. Advanced Pavement opposes GRI's motion on the basis triable issues exist as to whether GRI's agent, KE, participated in determining where snow was piled or relocated and, if so, whether the accident was caused by the negligence of GRI's employees and not any act or omission by Advanced Pavement. Advanced Pavement further avers that it did procure insurance on GRI's behalf, and that it was not contractually obligated to reimburse GRI's costs and attorneys' fees under the terms of the snow removal services agreement. Plaintiff opposes GRI's motion only to the extent it prejudices his negligence claims against defendants.

By way of a separate motion, Advanced Pavement moves for summary judgment dismissing the complaint and cross claims against it. Advanced Pavement argues that it did not owe plaintiff a duty of care, that no evidence exists that plaintiff detrimentally relied on the performance of its work, and that its snow removal efforts neither displaced GRI's responsibilities as owner of the parking lot nor launched the force or instrument of harm that caused the accident. GRI opposes the motion on the ground a triable issue exists as to whether Advanced Pavement's snow removal efforts - making piles of snow in the parking lot which melted and re-froze - launched the force or instrument of harm which caused plaintiffs accident. GRI further contends a triable issue exists as whether its duty to maintain the parking lot was completely displaced by the exclusive and comprehensive contractual obligations to remove snow and ice assumed by Advanced Pavement and, if so, whether such assumption created a duty running from Advanced Pavement to plaintiff. Relying on the arguments set forth in its own motion for summary judgment on its third-party claims, GRI also opposes the branch of Advanced Pavement's motion seeking dismissal of the cross claims against it. Plaintiff opposes Advanced Pavement's motion on similar basis, arguing, among other things, that Advanced Pavement failed to eliminate triable issues as to whether its snow removal agreement with GRI was so comprehensive and exclusive that it displaced GRI's proprietary duty to remove snow and ice from the parking lot and, if so, whether such efforts launched the force or instrument of harm that caused the accident.

KE opposes Advanced Pavement's motion on similar bases and moves for summary judgment dismissing the complaint and the cross claims against it. KE argues that it owed plaintiff no duty of care, since it neither owned the subject parking lot nor was obligated to remove snow or ice from its surface. Additionally, KE avers that it merely served as the property manager for the premises, and that its property management duties did not displace GRI's responsibilities for the maintenance of the subject parking lot or launch the force or instrument of harm that caused plaintiffs accident. KE adds that plaintiff, who did not know of the existence of the snow and ice removal agreement, could not have detrimentally relied on the performance of KE's contractual duties. Further, KE avers that it is entitled to contractual and common law indemnification as against Advanced Paving, as it is an intended beneficiary of the indemnification provision contained in the snow and ice removal services agreement, and the adduced evidence reveals that Advanced Paving's negligence was the sole cause of plaintiff s accident. Like GRI. KE also contends that Advanced Paving failed to procure insurance on its behalf.

GRI partially opposes KE's motion to the extent that it seeks dismissal of the complaint and the cross claims against it arguing that triable issues exist as to whether KE was contractually required to inspect and ensure that the snow and ice removal services were adequately performed by Advanced Paving and, if so, whether such obligation entirely displaced GRI's responsibility to maintain the subject parking lot. GRI contends that KE's failure in this regard, and its failure to procure liability insurance on GRI's behalf, constitutes a breach of its contractual obligations. Additionally, GRI asserts that its contractual indemnification cross claim against KE should not be dismissed, inasmuch as triable issues exist as to whether KE's negligent acts or omissions caused plaintiffs accident. Advanced Pavement opposes KE's motion on the grounds it failed to submit any evidence, such as meteorological data, to substantiate its conclusory claim that the ice which caused the accident emanated from a nearby snow pile, or that it possessed actual or constructive notice of the purported black ice on which plaintiff slipped. Additionally, Advanced Pavement asserts that as KE failed to show that its acts or omissions were the cause of the accident, the branches of its motion for contractual and/or common law indemnification must be denied. Advance Pavement also submitted a copy...

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