Pinto v. Walt Whitman Mall, LLC

175 A.D.3d 541

107 N.Y.S.3d 373

Marie A. PINTO, Plaintiff-Appellant-Respondent,

v.WALT WHITMAN MALL, LLC, et al., Defendants Third-Party Plaintiffs-Respondents-Appellants,

E.W. Howell Co., LLC, Defendant-Respondent-Appellant;

Elite Floors, Inc., Third-Party Defendant-Respondent.

2017–02959

Index No. 63751/13

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

Argued—February 1, 2019

August 21, 2019

Sullivan Papain Block McGrath & Cannavo P.C., Garden City, N.Y. (Christopher J. DelliCarpini of counsel), for plaintiff-appellant-respondent.

Polin, Prisco & Villafane (Mauro Lilling Naparty LLP, Woodbury, N.Y. [Matthew W. Naparty and Anthony F. DeStefano ], of counsel), for defendants third-party plaintiffs-respondents-appellants and defendant-respondent-appellant.

Gialleonardo, Frankini & Harms, Mineola, N.Y. (Eric L. Cooper of counsel), for third-party defendant-respondent.

WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, and the defendants third-party plaintiffs, Walt Whitman Mall, LLC, and Simon Management Associates, LLC, and the defendant E.W. Howell Company, LLC, separately appeal, from an order of the Supreme Court, Suffolk County (Paul J. Baisley, Jr., J.), dated February 16, 2017. The order, insofar as appealed from by the plaintiff, granted that branch of the motion of the defendant third-party defendant Elite Floors, Inc., and the separate motion of the defendant third-party plaintiffs, Walt Whitman Mall, LLC, and Simon Management Associates, LLC, and the defendant E.W. Howell Co., LLC, for summary judgment dismissing the complaint insofar as asserted against each of them. The order, insofar as appealed from by the defendants third-party plaintiffs, Walt Whitman Mall, LLC, and Simon Management Associates, LLC, and the defendant E.W. Howell Co., LLC, granted that branch of the motion of the defendant third-party defendant, Elite Floors, Inc., which was for summary judgment dismissing the third-party complaint and cross claims asserted against it.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants third-party plaintiffs, Walt Whitman Mall, LLC, Simon Management Associates, LLC, and the defendant E.W. Howell Company, LLC, which was for summary judgment dismissing the complaint insofar as asserted against them, and substituting therefor a provision denying that branch of their motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiff, payable by the defendants third-party plaintiffs Walt Whitman Mall, LLC, and Simon Management Associates, LLC, and the defendant E.W. Howell Company, LLC, and one bill of costs to the defendant third-party defendant Elite Floors, Inc., payable by the plaintiff and the defendants third-party plaintiffs Walt Whitman Mall, LLC, and Simon Management Associates, LLC, and the defendant E.W. Howell Company, LLC, appearing separately and filing separate briefs.

The plaintiff commenced this action to recover damages for personal injuries allegedly sustained after she tripped and fell in an indoor shopping mall. The plaintiff allegedly tripped on a warped portion of a temporary floor covering, made of masonite, that had been laid over an area of the floor where self-leveling concrete had recently been poured.

The plaintiff commenced this action against (1) Walt Whitman Mall, LLC (hereinafter the Mall), the entity that allegedly owned the subject shopping mall; (2) Simon Management Associates, LLC (hereinafter Simon), the entity that allegedly managed the property; (3) E.W. Howell Company, LLC (hereinafter Howell), a contractor hired by the Mall to perform remodeling work at the Mall; and (4) Elite Floors, Inc. (hereinafter Elite), a subcontractor hired by Howell to install carpeting and self-leveling concrete within the shopping mall. Howell asserted cross claims against Elite for common-law indemnification and contribution. The Mall and Simon commenced a third-party action against Elite, asserting causes of action for common-law indemnification and contribution.

Elite moved for summary judgment dismissing the complaint insofar as asserted against it. Elite also sought summary judgment dismissing the third-party complaint and cross claims asserted against it. The plaintiff opposed Elite's motion. The Mall, Simon, and Howell (hereinafter collectively the Mall defendants) separately opposed Elite's motion.

The Mall defendants subsequently moved for summary judgment dismissing the complaint insofar as asserted against them, arguing, inter alia, that they neither created the injury-producing condition nor had actual or constructive notice of it. The plaintiff opposed the Mall defendants' motion.

The Supreme Court granted both Elite's motion and the Mall defendants' motion. The plaintiff appeals from so much of the order as directed dismissal of the complaint. The Mall defendants separately appeal from so much of the order as directed dismissal of the cross claims and third-party causes of action they asserted against Elite, for common-law indemnification and contribution.

"[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party" ( Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485 ). However, the Court of Appeals has recognized three exceptions to the general rule: "(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" ( id. at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [citations and internal quotation marks omitted] ).

Here, Elite established its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by demonstrating that it did not owe a duty of care to the plaintiff (see Leibovici v. Imperial Parking Mgt. Corp., 139 A.D.3d 909, 910, 33 N.Y.S.3d 312 ; Bryan v. CLK–HP 225 Rabro, LLC, 136 A.D.3d 955, 956, 26 N.Y.S.3d 207 ). Furthermore, Elite established, prima facie, that none of the Espinal exceptions were applicable to impose upon it a duty of care to the plaintiff (see Federico v. Defoe Corp., 138 A.D.3d 682, 684, 29 N.Y.S.3d 454 ). Contrary to the plaintiff's contention, Elite established, prima facie, that the third Espinal exception was inapplicable. In support of its motion, Elite submitted, inter alia, excerpts of the subcontract it entered into with Howell which, among other things, gave Howell the right to perform any or all of the work contemplated by the subcontract, gave Simon the right to direct Elite to "suspend and properly protect any work that may be subject to damage," and required Elite to "conform to the safety requirements issued by [Howell]" (see Robles v. Taconic Mgt. Co., LLC, 173 A.D.3d 1089, 103 N.Y.S.3d 571 ; see also Santiago v. Kmart Corp., 158 A.D.3d 596, 596–597, 71 N.Y.S.3d 469 ; Hutchings v. Garrison Lifestyle Pierce Hill, LLC, 157 A.D.3d 1034, 1035–1036, 68 N.Y.S.3d 585 ; Lehman v. North Greenwich Landscaping, LLC, 65 A.D.3d 1291, 1292–1293, 887 N.Y.S.2d 136 ). Accordingly, Elite established, prima facie, that the contract between Elite and Howell was not a "comprehesive and exclusive property maintenance obligation intended to displace [the property owner's duty] to safely maintain the premises" ( George v. Marshalls of MA, Inc., 61 A.D.3d 925, 928, 878 N.Y.S.2d 143 ; see Roveccio v. Ry Mgt....