McEleney v. Riverview Assets, LLC

2022 NY Slip Op 00227

Judith McEleney et al., Respondents, v. Riverview Assets, LLC, et al., Appellants.

No. 531821

Supreme Court of New York, Third Department

January 13, 2022

Calendar Date:December 16, 2021

Law Offices of John Wallace, Albany (Murry S. Brower of counsel) for Riverview Assets, LLC and another, appellants.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Albany (Christopher J. Martin of counsel), for ABM Industry Groups LLC, appellant.

Buckley, Mendelson, Criscione & Quinn, PC, Albany (John J. Criscione of counsel), for respondents.

Before: Garry, P.J., Lynch, Aarons and Reynolds Fitzgerald, JJ.

GARRY P.J.

Appeal from an order of the Supreme Court (Buchanan, J.), entered July 8, 2020 in Schenectady County, which, among other things, denied defendants' motions for summary judgment dismissing the complaint.

Plaintiff Judith McEleney worked in a building owned by defendant Riverview Assets, LLC, a company affiliated with defendant Hampshire Properties LLC (hereinafter collectively referred to as the owners). Defendant ABM Industry Groups, LLC provided janitorial services for the owners. As she was leaving work one day, McEleney allegedly slipped on water and fell while passing one of ABM's cleaning machines that had been parked in a hallway. That hallway was in an area of the building leased to a tenant - a nonparty to this action - which was required by its lease to clean and maintain its own leased space, and for which ABM did not provide janitorial services.

McEleney and her spouse, derivatively, commenced this action alleging negligence. Following joinder of issue, the owners moved for summary judgment dismissing the portion of the complaint that was against them. ABM also moved for summary judgment dismissing the complaint against it, as well as the owners' cross claims. Plaintiffs cross-moved to amend their bill of particulars. Supreme Court denied the owners' and ABM's motions for summary judgment and granted plaintiffs' cross motion. Defendants appeal.

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Whiteside v Stachecki, 180 A.D.3d 1291, 1292 [2020] [internal quotation marks and citations omitted]). "To determine whether there are any factual issues, [this Court must] view the evidence in a light most favorable to the nonmoving party and give that party the benefit of every favorable inference" (Reed v New York State Elec. & Gas Corp., 183 A.D.3d 1207, 1212 [2020] [internal quotation marks and citations omitted]).

"As a general rule, an out-of-possession landlord is not responsible for dangerous conditions existing upon leased premises after possession of the premises has been transferred to the tenant" (Pomeroy v Gelber, 117 A.D.3d 1161, 1162 [2014] [internal quotation marks and citations omitted]; accord McLaughlin v 22 New Scotland Ave., LLC, 132 A.D.3d 1190, 1192 [2015]). Additionally, a property owner will generally not be held liable for the negligence of an independent contractor (see Kleeman v Rheingold, 81 N.Y.2d 270, 273 [1993]; Berger v Dykstra, 203 A.D.2d 754, 754 [1994], lv dismissed and denied 84 N.Y.2d 965 [1994]). However, one exception to both these general rules exists where the owner invites the public to the premises, including to places such as stores and office buildings; in those circumstances, property "owners are charged with a nondelegable duty to provide members of the general public with a reasonably safe premises, including a safe means of ingress and egress" (Backiel v Citibank, 299 A.D.2d 504, 507 [2002]; see Wayman v Roy Stanley, Inc., 122 A.D.3d 1119, 1120 [2014]; Blatt v L'Pogee, Inc., 112 A.D.3d 869, 869 [2013]; Thomassen v J & K Diner, 152 A.D.2d 421, 424 [1989], appeal dismissed 76 N.Y.2d 771 [1990]). "New York courts have long imposed a special duty on property owners to keep the entrances and passageways of a public building safe for tenants, their visitors, and their employees, all classes of people who come onto the premises for reasonably foreseeable purposes" (Backiel v Citibank, 299 A.D.2d at 506). "Clearly it would be inequitable to permit a property owner to escape liability by merely delegating the obligation to repair or maintain the premises to an independent contractor" (id.; see Rosenberg v Equitable Life Assur. Socy. of U.S., 79 N.Y.2d 663, 668 [1992] [noting that such a party "cannot insulate itself from liability by claiming that it was not negligent: (that party) is vicariously liable for the fault of the independent contractor because a legal duty is imposed on it which cannot be delegated"]).

In support of their motion for summary judgment, the owners submitted, among other things, their lease agreement with the tenant, photographs of the area where the accident occurred and the deposition testimonies of McEleney, a representative of the owners and the ABM employee who had been using the floor scrubbing machine and placed it in the area where McEleney fell. At her deposition, McEleney testified that, at the time of the incident, she worked in an office that her employer subleased from the tenant. To reach the elevator that accesses the garage where she parked, she routinely passed through a hallway in the tenant's leased area, then a common hallway. Although her office was locked, none of the hallways were locked or restricted. Before reaching the elevator on the day in question, McEleney fell and was injured in the tenant's hallway. McEleney testified that the floor was wet where she fell and that there was a cleaning machine to her left that was just "parked" there and not being operated by anyone. The liquid she slipped on was water, which had accumulated into a puddle to the right of the machine. According to McEleney, when she located the ABM employee, he allegedly told her that the machine had not been working and that they were trying to get it fixed.

Although the lease required the tenant to clean its leased space, and ABM did not provide cleaning services to the tenant, ABM was responsible for cleaning the common hallway abutting the hall where McEleney fell. The ABM employee had been cleaning that common hallway with the machine and had placed it in the tenant's hallway - which was apparently wider than the common hallway - so that it would be out of the way and not obstruct the common hallway while he took a break. The employee told his supervisor that McEleney said she had fallen on water from the cleaning machine. The ABM employee testified that he had not seen water on the floor but could not verify the lack of water there; he was also equivocal regarding whether moisture would remain on the floor after using the machine.

McEleney was injured in a hallway leading to the elevators that she routinely used to access the parking garage and exit the building. Even though this part of the building was under the control of the tenant, the area was open to the general public. As McEleney was a person lawfully on the premises, the owners owed her a nondelegable duty to provide a safe means of ingress and egress (see Backiel v Citibank, 299 A.D.2d at 507). That nondelegable duty gave rise to an exception to the general rules, allowing the owners to be held vicariously liable for the purported negligence of an independent contractor, such as ABM, which allegedly created a dangerous condition that caused McEleney's injuries (see Wayman v Roy Stanley, Inc., 122 A.D.3d at 1120; Grizzell v JQ Assoc., LLC, 110 A.D.3d 762, 764 [2013]; Podlaski v Long Is. Paneling Ctr. of Centereach, Inc., 58 A.D.3d 825, 826 [2009]). As the owners failed to meet their prima facie burden to establish entitlement to summary judgment, Supreme Court properly denied their motion (see Monroy v Lexington Operating Partners, LLC, 179 A.D.3d 1053, 1054 [2020]).

As to ABM, "[b]ecause a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party" (Espinal v Melville Snow Contrs., 98 N.Y.2d 136, 138 [2002]; accord Vogle v North Country Prop. Mgt., LLC, 170 A.D.3d 1491, 1492 [2019]). Although a contractual obligation generally does not give rise to tort liability in favor of a noncontracting third party, one exception to this principle applies, and creates a duty of care, "where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launches a...