Zuckerman v. State

• Decision Date: 14 November 1994
• Citation: 209 A.D.2d 510,618 N.Y.S.2d 917
• Parties: , 96 Ed. Law Rep. 183 Harvey ZUCKERMAN, et al., Appellants, v. STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 917

618 N.Y.S.2d 917

209 A.D.2d 510, 96 Ed. Law Rep. 183

Harvey ZUCKERMAN, et al., Appellants, v. STATE of New York, Respondent.

Supreme Court, Appellate Division,

Second Department.

Nov. 14, 1994.

Nydick & Ross, P.C., Melville, for appellants.

G. Oliver Koppell, Atty. Gen., New York City (Peter H. Schiff and Michael S. Buskus, of counsel), for respondent.

Before BRACKEN, J.P., and MILLER, COPERTINO and HART, JJ.

MEMORANDUM BY THE COURT.

In a claim to recover damages for personal injuries, etc., the claimants appeal from a judgment of the Court of Claims (Silverman, J.), dated July 9, 1992, which, after a trial on the issue of liability only, was in favor of the defendant and against them, dismissing the claim.

ORDERED that the judgment is reversed, on the law, with costs, the complaint is reinstated, and the matter is remitted to the Court of Claims for further proceedings consistent herewith.

The plaintiff slipped and fell on a patch of ice which had formed on the upper level of a parking garage located on the campus of the State University of New York at Stony Brook. This property was owned by a non-party, the Dormitory Authority of the State of New York, and occupied by the defendant State. As found by the Court of Claims, "the State, through its University, agreed to provide [certain] services to the Dormitory Authority". The Court of Claims also found, based on the documentary evidence before it, that "one of [the] services [provided by defendant State] was snow and ice removal and sanding or salting".

The "Parking Facilities Maintenance Agreement I", entered into between the Dormitory Authority of the State of New York and the State University of New York, states in relevant part that "the University [was supposed] to provide the following services at Parking Garage A * * * snow and ice removal and sanding and salting as required". A "Manual of Operating Procedures" states that "SUNY [was supposed to] patrol * * * the facilities to assure that * * * no unsafe conditions exist". This document also identifies ice patches as an example of the type of unsafe condition for which agents of the State University were supposed to inspect the premises.

The Court of Claims held, after trial on the issue of liability, that the defendant State owed no common-law duty of reasonable care with respect to the maintenance of this property, and that the State did not owe any duty to the plaintiff on the theory that the plaintiff was a third-party beneficiary of the State's contract with the Dormitory Authority. We disagree with this holding.

The evidence establishes that the control of the premises in question was a cooperative effort in which the State played an essential role by providing cleaning, security, and other services. An occupant of premises, like an owner, has a common-law duty to keep the property in reasonably safe condition (see, Putnam v. Stout, 38 N.Y.2d 607, 381 N.Y.S.2d 848, 345 N.E.2d 319; Zadarosni v. F. & W. Restauranteurs of Southeast, 192 A.D.2d 1051, 597 N.Y.S.2d 220; Provenzano v. Roslyn Gardens Tenants Corp., 190 A.D.2d 718, 593 N.Y.S.2d 80; Farrar v. Teicholz, 173 A.D.2d 674, 570 N.Y.S.2d 329; Elston v. FCO Auto Racing, 161 A.D.2d 561, 555 N.Y.S.2d 394; Chadis v. Grand Union Co., 158 A.D.2d 443, 550 N.Y.S.2d 908; McGill v. Caldors, Inc., 135 A.D.2d 1041, 522 N.Y.S.2d 976). This duty coexists with the duty the defendant State undertook as a result of its contractual promise to keep the premises free of ice and snow (see, Palka v. Servicemaster Mgt. Serv. Corp., 83 N.Y.2d 579, 611 N.Y.S.2d 817, 634 N.E.2d 189; cf., Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d 220, 557 N.Y.S.2d 286, 556 N.E.2d 1093; Ledda v. Minkin, 149 A.D.2d 471, 539 N.Y.S.2d 966). In light of the provisions noted above, the State's contractual promises could only have enlarged, and could not have restricted, the scope of its duty of care.

In general, the duty which the common law imposes on the owner or possessor of property includes the duty to make reasonable efforts to inspect the property so as to determine the presence of dangerous conditions (Willis v. Young Men's Christian Assn. of Amsterdam, 28 N.Y.2d 375, 321 N.Y.S.2d 895, 270 N.E.2d 717; Ford v. Grand Union Co., 268 N.Y. 243, 197 N.E. 266). The owner or possessor of property does not absolve himself or herself of this duty merely by hiring a third party to make periodic inspections (see, Fish v. Estate of McCarthy, Inc., 224 App.Div. 160, 229 N.Y.S. 674). Thus, the holding of the Court of Claims that "the State was under no obligation to * * * [inspect the garage]" is incorrect. This duty existed both as a matter of contract and as a matter of tort law.

For the foregoing reasons, the Court of Claims erred in granting judgment to the defendant and dismissing the complaint either on the theory that the State's negligence, if any, consisted of nonfeasance only (cf., Palka v. Servicemaster Mgt. Serv. Corp., 83 N.Y.2d 579, 611 N.Y.S.2d 817, 634 N.E.2d 189, supra ) or on the theory that the plaintiff was not an intended beneficiary of the State's contract with the Dormitory Authority. The matter should therefore be remitted to the Court of Claims for a decision on those issues left undecided as a result of that court's determination, and, if necessary, for an apportionment of liability and a trial of damages.

BRACKEN, J.P., and MILLER and COPERTINO, JJ., concur.

HART, J., dissents and votes to affirm the judgment appealed from, with the following memorandum.

HART, Justice, dissenting:

It is my opinion, contrary to the conclusion of my colleagues in the majority, that the trial court acted properly in its interpretation of the relevant documents and correctly ruled that the State owed no duty to the injured claimant either by way of contract privity or under the common law. Contracts which are explicit and clearly set forth the parties' agreement or agreements involve only questions of law and the construction of such documents is a matter for the court.

The claimant sued in the Court of Claims for injuries allegedly sustained when he slipped on a patch of ice at a parking...