Garcia v. Black Sea Properties

210 N.Y.3d 855

227 A.D.3d 1486

Sandra GARCIA, Plaintiff-Respondent,

v.BLACK SEA PROPERTIES, LLC, Pep Boys-Manny, Moe & Jack of Delaware, Inc., Defendants.

Pep Boys-Manny, Moe & Jack of Delaware, Inc., Third-Party Plaintiff-Respondent-Appellant,

v.FacilitySource, LLC, Third-Party Defendant-Appellant-Respondent,andRed Rose Landscaping, LLC, Third-Party Defendant-Respondent-Appellant.

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

Entered: May 3, 2024

Appeal and cross-appeals from an order of the Supreme Court, Erie County (Amy C. Martoehe, J.), entered October 4, 2022. The order, among other things, granted in part the motion of third-party defendant Red Rose Landscaping, LLC for summary judgment.

COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (KELLY J. PARE OF COUNSEL), FOR THIRD-PARTY DEFENDANT-APPELLANT-RESPONDENT.

CLYDE & CO US LLP, NEW YORK CITY (KEVIN C. MCCAFFREY OF COUNSEL), FOR THIRD-PARTY PLAINTIFF-RESPONDENT-APPELLANT.

RUPP PFALZGRAF LLC, BUFFALO (CORY J. WEBER OF COUNSEL), FOR THIRD-PARTY DEFENDANT-RESPONDENT-APPELLANT.

LAW OFFICES OF ROBERT D. BERKUN, LLC, AMHERST (KENETH P.L. LOWE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

PRESENT: SMITH, J.P., BANNISTER, MONTOUR, NOWAK, AND DELCONTE, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion of third-party defendant FacilitySource, LLC, in part and dismissing the causes of action against it for contribution, common-law in- demnification, and the failure to procure insurance and the cross-claims against it for contribution and common-law indemnification; and denying third-party defendant Red Rose Landscaping, LLC’s motion in its entirety and reinstating FacilitySource, LLC’s cross-claim against it for failure to procure insurance, and as modified the order is affirmed without costs.

Memorandum: This personal injury action arose when plaintiff slipped and fell in the parking lot on property owned by defendant Black Sea Properties, LLC (Black Sea) and leased by defendant-third-party plaintiff Pep Boys–Manny, Moe & Jack of Delaware, Inc. (Pep Boys). Pep Boys contracted with third-party defendant FacilitySource, LLC (FacilitySource) to manage the subject property. Included in the scope of FacilitySource’s responsibilities was snow and ice removal. In order to fulfill its snow and ice removal obligations, Facility-Source entered into a Service Provider Agreement (SPA) with third-party defendant Red Rose Landscaping, LLC (Red Rose).

Plaintiff commenced this action against Black Sea and Pep Boys, alleging that they had failed to maintain the subject premises in a reasonably safe condition. Pep Boys answered and commenced a third-party action against FacilitySource and Red Rose, asserting causes of action for contribution, common-law indemnification, and contractual indemnification, as well as a cause of action against Facility-Source for failing to procure insurance naming Pep Boys as an additional insured. Red Rose answered and asserted a cross-claim against FacilitySource for indemnification and contribution. Facility-Source answered and asserted its own cross-claims against Red Rose for common-law indemnification and contribution, contractual indemnification, and failure to procure insurance naming FacilitySource as an additional insured.

Red Rose moved for summary judgment seeking dismissal of all claims and cross-claims against it. FacilitySource moved for summary judgment dismissing the amended third-party complaint and cross-claims against it, and for summary judgment on FacilitySource’s cross-claims against Red Rose for contractual indemnification and failing to procure insurance. Pep Boys cross-moved for, inter alia, summary judgment on the amended third-party complaint and dismissing the amended complaint against it.

Supreme Court granted Red Rose’s motion for summary judgment in part by dismissing the cross-claim against it alleging that it had failed to procure insurance coverage. The order otherwise denied the motions and cross-motions. FacilitySource appeals, and Pep Boys and Red Rose cross-appeal.

[1, 2] In its cross-appeal, Red Rose contends that it established its entitlement to summary judgment by demonstrating that plaintiff was unable to identify the cause of her fall without engaging in improper speculation and, therefore, all claims and cross-claims against it must be dismissed. We reject that contention. "To establish a prima facie case of negligence based wholly on circumstantial evidence, ‘[i]t is enough that [plaintiff] shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence pay be reasonably inferred’ " (Schneider v. Kings Hwy. Hosp. Ctr., 67 N.Y.2d 743, 744, 500 N.Y.S.2d 95, 490 N.E.2d 1221 [1986], quoting Ingersoll v. Liberty Bank of Buffalo, 278 N.Y. 1, 7, 14 N.E.2d 828 [1938]). Here, although Red Rose submitted the deposition testimony of plaintiff, wherein she testified that she did not see what caused her fall, she also testified that there was a "lot of water and slush and ice on the ground where [she] was walking" and affirmed that she felt her "foot slip out from under [her]." Additionally, after she fell, her clothes were "soaking wet," and there was a "little bit" of slush on her jacket. Thus, Red Rose failed to meet its initial burden of establishing that plaintiff "was unable to specify what caused her to fall "without engaging in speculation’ " (Smart v. Zambito, 85 A.D.3d 1721, 1721, 926 N.Y.S.2d 245 [4th Dept. 2011]; cf. McGill v. United Parcel Serv., Inc., 53 A.D.3d 1077, 1077, 861 N.Y.S.2d 887 [4th Dept. 2008]). Although plaintiff could not specifically identify the cause of her fall, there is "sufficient evidence in the record from which a jury could reasonably conclude that the [water, slush, and ice] caused or contributed to plaintiff's accident" (Trzaska v. Allied Frozen Stor., Inc., 77 A.D.3d 1291, 1293, 909 N.Y.S.2d 260 [4th Dept. 2010]). Stated another way, plaintiff's deposition testimony in which she stated that she fell in the "immediate vicinity" where she observed the water, slush, and ice rendered "any other potential cause of her fall ‘sufficiently remote or technical to enable [a] jury to reach [a] verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence' " (Nolan v. Onondaga County, 61 A.D.3d 1431, 1432, 876 N.Y.S.2d 825 [4th Dept. 2009]; see generally Schneider, 67 N.Y.2d at 744, 500 N.Y.S.2d 95, 490 N.E.2d 1221).

Regarding the cause of action and cross-claims for contractual indemnification, FacilitySource contends on its appeal that the court erred in denying those parts of its motion seeking summary judgment dismissing Pep Boys’s cause of action for contractual indemnification against it and seeking summary judgment on its cross-claim for contractual indemnification against Red Rose. Pep Boys contends on its cross-appeal that the court erred in denying its cross-motions with respect to the contractual indemnification causes of action against FacilitySource and Red Rose. Red Rose contends on its cross-appeal that the court erred in denying that part of its motion seeking summary judgment dismissing the cause of action and cross-claim against it for contractual indemnification. We reject those contentions.

[3] As an initial matter, contrary to Red Rose’s suggestion, Pep Boys, as FacilitySource’s customer, is an intended third-party beneficiary of the indemnification provision of the SPA as a matter of law (see generally Beasock v. Canisius Coll., 126 A.D.3d 1403, 1404, 5 N.Y.S.3d 777 [4th Dept. 2015]). Thus, insofar as Red Rose claims that Pep Boys is not entitled to contractual indemnification based on lack of privity, that claim is rejected.

[4] " ‘[T]he right to contractual indemnification depends upon the specific language of the contract’ " (Vega v. FNUB, Inc., 217 A.D.3d 1475, 1479, 192 N.Y.S.3d 863 [4th Dept. 2023]; see Allington v. Templeton Found., 167 A.D.3d 1437, 1441, 90 N.Y.S.3d 735 [4th Dept. 2018]). The contractual indemnification cause of action and cross-claim against Red Rose arise from the SPA. In pertinent part, the SPA requires Red Rose to indemnify Facility-Source and FacilitySource’s customers for claims arising out of "(i) any act or omission of [Red Rose] …; (ii) any failure of [Red Rose] … to perform the Services [under the SPA] in accordance with generally accepted industry and professional standards; (iii) any breach of [Red Rose’s] representations as set forth in [the SPA]; or (iv) any other failure of [Red Rose] … to comply with the obligations on [Red Rose’s] part to be performed" (collectively, triggering event). Also, pursuant to the SPA, Red Rose was required to "plow and shovel snow" in various areas on the subject property when at least two inches of snow had fallen with the objective of achieving bare pavement and in a manner that avoided impeding customer access to parking, sidewalks and customer en- trances. The SPA required Red Rose to perform various de-icing services, as necessary, after plowing and "in freezing conditions, or in anticipation of freezing conditions."

[5] Here, although the record before the court contained evidence that Red Rose serviced the property at 3:00 a.m. on the date of plaintiff’s accident and regarding which vehicles were involved in that service, the record is devoid of evidence about the services actually performed at that time. Moreover, there is no evidence regarding the temperature on the morning of the incident, or whether a sufficient amount of snow had fallen that would require Red Rose to perform its contractual duties. Thus, we conclude that there are triable issues of fact whether Red Rose’s acts or omissions constituted a triggering event requiring it to indemnify FacilitySource or Pep Boys pursuant to the SPA. The court therefore properly denied those parts of the cross-motion of Pep Boys and the motion of FacilitySource...