Villezcas v. 66 W. 84th St. Owners Corp.

• Court: New York Supreme Court
• Writing for the Court: LUCY BILLINGS, J.S.C.
• Citation: Villezcas v. 66 W. 84th St. Owners Corp., 2019 NY Slip Op 32461(U), Index No. 153932/2013 (N.Y. Sup. Ct. Aug 13, 2019)
• Decision Date: 13 August 2019
• Docket Number: Index No. 153932/2013
• Parties: EMMA VILLEZCAS, Plaintiff v. 66 WEST 84TH STREET OWNERS CORP., 66 WEST 84TH EQUITIES, LLC, TIME EQUITIES, INC., TIME EQUITIES ASSOCIATES, LLC, and KYROUS REALTY GROUP, INC., Defendants 66 WEST 84TH STREET OWNERS CORP., Third Party Plaintiff v. N.Y.C. SUPER SERVICES, INC., and TRINITY DEVELOPMENT GROUP, INC., Third Party Defendants

2019 NY Slip Op 32461(U)

EMMA VILLEZCAS, Plaintiff v. 66 WEST 84TH STREET OWNERS CORP., 66 WEST 84TH EQUITIES, LLC, TIME EQUITIES, INC., TIME EQUITIES ASSOCIATES, LLC, and KYROUS REALTY GROUP, INC., Defendants66 WEST 84TH STREET OWNERS CORP., Third Party Plaintiff v. N.Y.C. SUPER SERVICES, INC., and TRINITY DEVELOPMENT GROUP, INC., Third Party Defendants

Index No. 153932/2013

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

RECEIVED: August 21, 2019

August 13, 2019

NYSCEF DOC. NO. 465

DECISION AND ORDER

LUCY BILLINGS, J.S.C.:

I. BACKGROUND

Plaintiff sues to recover damages for personal injuries sustained September 10, 2011, at approximately 10:45 a.m., when she slipped on a wet lobby floor, caused by a leak through the lobby ceiling, on premises at 66 West 84th Street, New York County, managed by defendant Kyrous Realty Group, Inc., and owned by defendant-third party plaintiff 66 West 84th Street Owners Corp. It contracted with third party defendant N.Y.C. Super Services, Inc., for third party defendant Trinity Development Group, Inc., to maintain the premises' common areas. In an order entered March 20, 2018, the court (Mendez, J.), granted summary judgment dismissing all claims against defendant ES & DS, Inc. In an order entered October 22, 2018, the court granted summary judgment dismissing all claims against defendants 66 West 84th Equities, LLC, Time Equities, Inc., and Time Equities Associates, LLC.

66 West 84th Street Owners Corp. moves for summary judgment on the third party indemnification claims, C.P.L.R. § 3212(b) and (e), based on N.Y.C. Super Services' contractual obligation to maintain the lobby. Third party defendants separately move for summary judgment dismissing all claims against third party defendants, C.P.L.R. § 3212(b), on the ground that plaintiff's injury arose from a condition outside the scope of the contract. For the reasons explained below, the court grants third party defendants' motion in part and denies the remainder of themotions.

II. THE CONTRACT

The parties stipulated on the record October 18, 2018, that the contract presented by 66 West 84th Street Owners Corp. between it and N.Y.C. Super Services dated July 15, 2010, is authenticated and admissible for purpose of determining the pending motions for summary judgment. In the contract, N.Y.C. Super Services agreed to "render custodial and related services" to 66 West 84th Street Owners Corp. Aff. of Matthew Levy Ex. M, at 1. N.Y.C. Super Services undertook the duty to: "Report any work that needs to be done by an outside contractor to the management company and provide access to any apartment to which they need access. Also, supervise such contractors, inspectors, mechanics and/or personnel." Id. at 2. During emergencies, N.Y.C. Super Services was required to "take all necessary measures to prevent damage to the Building or its occupants." Id. at 3. As needed, N.Y.C. Super Services was required to "[r]eplace and adjust doorknobs and locks on the doors," id. at 4, and "[s]upervise any Building staff which may from time to time be employed by the Corporation on either a full or part time basis." Id. at 2. In the lobby, N.Y.C. Super Services was required to: "Sweep and mop floors" and keep the lobby "free ofwaste and garbage" daily. Id. at 4.

III. 66 WEST 84TH STREET OWNERS CORP.'S MOTION

66 West 84th Street Owners Corp. seeks summary judgment on the third party indemnification claims based on third party defendants' responsibility for maintaining the lobby and safeguarding the building's occupants during emergencies. Third party defendants oppose the motion, claiming that they performed their maintenance duties under the contract and that 66 West 84th Street Owners Corp. was responsible for making the repairs to address the leak.

Since the contract does not provide for indemnification, the court denies 66 West 84th Street Owners Corp. summary judgment on the third party contractual indemnification claim. Sicilia v. City of New York, 127 A.D.3d 628, 628 (1st Dep't 2015); Hughey v. RHM-88, LLC, 77 A.D.3d 520, 523 (1st Dep't 2010); Neighborhood Partnership Hous. Dev. Fund v. Blakel Constr. Corp., 34 A.D.3d 303, 304 (1st Dep't 2006); Temmel v. 1515 Broadway Assoc., L.P., 18 A.D.3d 364, 365-66 (1st Dep't 2005). For non-contractual, implied indemnification, 66 West 84th Street Owners Corp. relies on the deposition testimony by Renato De Guzman, third party defendants' owner, to establish their negligence and fault in failing to protect the lobby from the leak that caused the wetfloor. De Guzman was not at the premises on the day plaintiff was injured, so he based all his testimony about all the occurrences on that day leading up to her fall on reports by Marco Muniz, a Trinity Development Group employee.

66 West 84th Street Owners Corp. may not rely on inadmissible hearsay to establish third party defendants' deficient performance of contractual duties. DeCanio v. Principal Bldg. Servs. Inc., 115 A.D.3d 579, 580 (1st Dep't 2014); Romero v. Morrisania Towers Hous. Co. Ltd. Partnersip, 91 A.D.3d 507, 508 (1st Dep't 2012); Steinberg v. New York City Tr. Auth., 88 A.D.3d 582, 582 (1st Dep't 2011); Enrique S. v. Genell M.D., 56 A.D.3d 396, 397 (1st Dep't 2008). Even if the court considers De Guzman, the owner of both third party defendants, to have adopted the reports by third party defendant Trinity Development Group's employee as De Guzman's account, so that they constitute third party defendants' admissions, see People v. Vining, 28 N.Y.3d 686, 690 (2017); People v. Campney, 94 N.Y.2d 307, 311 (1999); People v. Woodward, 50 N.Y.2d 922, 923 (1980); People v. Gomez, 21 A.D.3d 827, 828 (1st Dep't 2005), 66 West 84th Street Owners Corp. nevertheless fails meet the companion requirement for implied indemnification.

Regardless of the extent to which De Guzman's testimony mayrecount third party defendants' failures contributing to plaintiff's injury, to be entitled to implied indemnification, 66 West 84th Street Corp. must establish the absence of its own negligence and fault in failing to protect the lobby from the leak that caused the wet floor. Haynes v. Boricua Vil. Hous. Dev. Fund Co., Inc., 170 A.D.3d 509, 511 (1st Dep't 2019); Muqattash v. Choice One Pharm. Corp., 162 A.D.3d 499, 500-501 (1st Dep't 2018); Dzidowska v. Related Cos., LP, 157 A.D.3d 447, 448 (1st Dep't 2018); Gardner v. Tishman Constr. Corp., 138 A.D.3d 415, 417 (1st Dep't 2016). The leak in the lobby was reported to Leonard Barish of Kyrous Realty Group, 66 West 84th Street Owners Corp.'s property manager, September 8, 2011. The next afternoon De Guzman determined that a stoppage in a shaftway caused the leak in the lobby. According to De Guzman, to ascertain the cause of the leak, he, together with Barish, poured water down the shaftway, and they, together with Muniz, observed water leaking through to the lobby afterward. Neither 66 West 84th Street Owners Corp. itself nor its property manager, upon learning of the leak September 8 or its cause September 9, arranged for repair of the condition until September 10, 2011. According to the deposition testimony by both Barish and the DS & ES mechanic himself, when the mechanic arrived at the building torepair the leak September 10, 2011, he employed the same test De Guzman had employed to ascertain the cause of the leak and thus caused more water to accumulate on the lobby floor before finally repairing the leak.

No party disputes that plaintiff slipped on water in the lobby at approximately 10:45 a.m. September 10, 2011. Based on the further testimony by the mechanic that he arrived at the premises about 2:00 p.m. on that day, plaintiff's injury occurred before the mechanic's visit. If her fall preceded the repair, then 66 West 84th Street Owners Corp.'s delay in arranging for the repair contributed to her injury. Even if her fall in fact followed the mechanic's testing procedure pouring water down the shaftway into the lobby, then Barish's hiring of the mechanic on behalf of 66 West 84st Street Owners Corp., aware of the flooding such a testing procedure would cause without adequate precautions, contributed to plaintiff's injury.

66 West 84th Street Owners Corp. does not dispute that the cause of the leak and the damage it caused to the lobby ceiling entailed a structural condition that 66 West 84th Street Owners Corp. was responsible to repair and thus to repair safely, and therefore it was responsible for any unsafe condition the repair work caused. While third party defendants may be equally or moreculpable, because 66 West 84th Street Owners Corp. has not eliminated its own contributory fault, the court denies 66 West 84th Street Owners Corp. summary judgment on the third party non-contractual indemnification claim. Dzidowska v. Related Cos., LP, 157 A.D.3d at 448; Gardner v. Tishman Constr. Corp., 138 A.D.3d at 417; Martins v. Little 40 Worth Assoc., Inc., 72 A.D.3d 483, 484 (1st Dep't 2010).

IV. THIRD PARTY DEFENDANTS' MOTION

66 West 84th Street Owners Corp.'s third party action claims contractual and implied indemnification, breach of a contract to procure insurance, and contribution. Third party defendants seek dismissal of all these claims based on the absence of any contractual duty of care to plaintiff or duty regarding the premises' exterior, which third party defendants claim includes the shaftway where the drain that caused the leak in the lobby was located. 66 West 84th Street Owners Corp. contends that the absence of third party defendants' duty of care to plaintiff under the contract does not alter their obligation to perform the contract, which in turn displaced 66 West 84th Street Owners Corp.'s duty to maintain the premises.

A. Unsustainable Claims

As set forth above, the contract does not require third party defendants to indemnify 66 West 84th Street Owners Corp. Therefore the court dismisses the third party claim for contractual indemnification. Canty v. 133 E. 79th St., LLC, 167 A.D.3d...