Castillo v. Port Auth. of N.Y. & N.J.

159 A.D.3d 792

72 N.Y.S.3d 582

Lourdes CASTILLO, plaintiff,

v.PORT AUTHORITY OF NEW YORK and New Jersey, respondent, et al., defendants,Cristi Cleaning Service Corp., et al., appellants.

2016–01320

Index No. 22684/11

Supreme Court, Appellate Division, Second Department, New York.

Argued November 2, 2017

March 14, 2018

Stewart H. Friedman, Garden City, N.Y. (Robert F. Horvat of counsel), for appellant Cristi Cleaning Service Corp.

Morris Duffy Alonso & Faley, New York, N.Y. (Elizabeth A. Filardi, Andrea M. Alonso, and Iryna S. Krauchanka of counsel), for appellant Five Star Parking.

James M. Begley, New York, N.Y. (Cheryl N. Alterman of counsel), for respondent.

REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Cristi Cleaning Service Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (D.Hart, J.), entered December 16, 2015, as denied its motion for summary judgment dismissing the amended verified complaint and all cross claims insofar as asserted against it, and the defendant Five Star Parking separately appeals, as limited by its brief, from so much of the same order as denied its motion for summary judgment dismissing the amended verified complaint and all cross claims insofar as asserted against it.

ORDERED that the order is modified, on the law, (1) by deleting the provisions thereof denying those branches of the motion of the defendant Cristi Cleaning Service Corp. which were for summary judgment dismissing the amended verified complaint and the cross claims of the defendant Port Authority of New York and New Jersey sounding in contribution and common-law indemnification insofar as asserted against it, and substituting therefor provisions granting those branches of the motion, and (2) by deleting the provisions thereof denying those branches of the motion of the defendant Five Star Parking which were for summary judgment dismissing the amended verified complaint and the cross claims of the defendant Port Authority of New York and New Jersey sounding in contribution and common-law indemnification insofar as asserted against it, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff, who was employed by an airline operating at LaGuardia Airport (hereinafter LaGuardia), allegedly was injured when she slipped on a patch of ice in the employee parking lot (hereinafter the parking lot) at LaGuardia as she was walking to her car. She commenced this action to recover damages for personal injuries, alleging common-law negligence and violation of Labor Law § 200.

Pursuant to a contract with the defendant Port Authority of New York and New Jersey (hereinafter the Port Authority), the defendant Cristi Cleaning Service Corp. (hereinafter Cristi) had a contractual duty to perform janitorial and cleaning services and certain snow removal services which did not include removing snow and ice from the parking lot. Pursuant to a separate contract with the Port Authority, the defendant Five Star Parking (hereinafter Five Star) managed the parking lot. Five Star's contractual duties included, among other things, monitoring the condition of the parking lot, reporting snowy or icy conditions to the Port Authority, and removing snow and ice from certain exit lanes, but it did not have a duty to remove snow or ice from the parking lot.

In its verified answer, the Port Authority, among other things, asserted cross claims against Cristi and Five Star for contractual indemnification, common-law indemnification, breach of contract to procure liability insurance, and contribution. After discovery, Cristi and Five Star separately moved for summary judgment dismissing the amended verified complaint and all cross claims insofar as asserted against each of them, contending that they did not have a duty to remove snow from the parking lot, and that they did not owe the plaintiff a duty of care. The Supreme Court denied Cristi's motion, concluding that Cristi had failed to demonstrate, prima facie, that its acts or omissions in its snow removal near the parking lot did not create the alleged icy condition on which the plaintiff fell. The court also denied Five Star's motion, concluding that Five Star had failed to demonstrate, prima facie, that it did not violate a duty "to plaintiff to take proper action by notifying the Port Authority of the alleged hazardous condition."

A contractual obligation, standing alone, does not generally give rise to tort liability in favor of a third party unless one of three exceptions applies: "(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely" ( Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [citation and internal quotation marks omitted]; see Diaz v. Port Auth. of N.Y. & NJ , 120 A.D.3d 611, 611–612, 990 N.Y.S.2d 882 ; Rudloff v. Woodland Pond Condominium Assn. , 109 A.D.3d 810, 810, 971 N.Y.S.2d 170 ).

The exceptions alleged in the pleadings with respect to Cristi and Five Star were that they launched an instrument of harm, and that their respective agreements with the Port Authority were comprehensive and exclusive such that they entirely displaced the Port Authority's duty to maintain the premises safely (see Foster v. Herbert Slepoy Corp. , 76 A.D.3d 210, 214, 905 N.Y.S.2d 226 ). Therefore, in moving for summary judgment dismissing the amended verified complaint and all cross claims insofar as asserted against them, Cristi and Five Star were required to address these exceptions by demonstrating, prima facie, that they did not launch a force or instrument of harm creating or exacerbating any allegedly dangerous condition, and that their contracts with the Port Authority were not comprehensive and exclusive.

"[A] claim that a contractor exacerbated an existing condition requires some showing that the contractor left the premises in a more dangerous condition than he or she found them" ( Rudloff v. Woodland Pond Condominium Assn. , 109 A.D.3d at 811, 971 N.Y.S.2d 170 ; see Foster v. Herbert Slepoy Corp. , 76 A.D.3d at 215, 905 N.Y.S.2d 226 ). The submissions in support of their respective motions show that neither Cristi nor Five Star created or exacerbated the icy condition and thereby launched an instrument of harm. Rather, they merely failed to be " ‘an instrument for good,’ which is insufficient to impose a duty of care upon a party not in privity of contract with the injured party" ( Altinma v. East 72nd Garage Corp. , 54 A.D.3d 978, 980, 865 N.Y.S.2d 109, quoting Moch Co. v. Rensselaer Water Co. , 247 N.Y. 160, 168, 159 N.E. 896 ; see Church v. Callanan Indus. , 99 N.Y.2d 104, 112, 752 N.Y.S.2d 254, 782 N.E.2d 50 ; Barone v. Nickerson , 140 A.D.3d 1100, 1101, 32 N.Y.S.3d 663 ; Braverman v. Bendiner & Schlesinger, Inc. , 121 A.D.3d 353, 360, 990 N.Y.S.2d 605 ; Quinones v. City of New York , 105 A.D.3d 932, 934, 963 N.Y.S.2d 370 ; Vasquez v. Port Auth. of N.Y. & N.J. , 100 A.D.3d 442, 442, 955 N.Y.S.2d 1 ; Bono v. Halben's Tire City Inc. , 84 A.D.3d 1137, 1139, 924 N.Y.S.2d 497 ; Bauerlein v. Salvation Army , 74 A.D.3d 851, 856, 905 N.Y.S.2d 215 ). Therefore, they established their prima facie entitlement to judgment as a matter of law on this issue. In opposition, the Port Authority failed to raise a triable issue of fact that the acts or omissions of either Cristi or Five Star left the parking lot more dangerous than they found it.

The contracts between the Port Authority, Cristi, and Five Star were not comprehensive and exclusive property maintenance agreements intended to displace the Port Authority's general duty to keep the premises in a safe condition (see Rudloff v. Woodland Pond Condominium Assn. , 109 A.D.3d at 811–812, 971 N.Y.S.2d 170 ; Henriquez v. Inserra Supermarkets, Inc. , 89 A.D.3d 899, 901–902, 933 N.Y.S.2d 304 ; Shang Sook Min v. ABM, Inc. , 47 A.D.3d 699, 699, 848 N.Y.S.2d 881 ). Therefore, Cristi and Five Star established their prima facie entitlement to judgment as a matter of law on this issue. The Port Authority failed to raise a triable issue of fact in opposition. The contractual duties of Cristi and Five Star to the Port Authority did not constitute duties to the plaintiff. Cristi's snow removal duties did not extend to the parking lot. The Port Authority argued, among other things, that Cristi breached a contractual duty to inspect the parking lot and to notify the Port Authority of any dangerous conditions. However, that alleged contractual duty did not extend to the plaintiff. Further, Five Star's alleged duty to notify the Port Authority of a snow...