Vivar v. Key Food Stores Co-Op.

2023 NY Slip Op 51290(U)

Noe Vivar, Plaintiff, v. Key Food Stores Co-Operative, Inc., MIDDLE ISLAND PLAZA, LLC, 870 MIDDLE ISLAND PRODUCE CORP., CONFER RBR, LLC and MELVILLE SNOW CONTRACTORS., Defendants.

Index No. 602618/2021

Supreme Court, Suffolk County

October 11, 2023

Unpublished Opinion

FERRO KUBO, MANGANO, P.C. Attorneys for Plaintiff

MIRANDA SLOANE SKLARIN VERVENIOTIS, LLP Attorneys for Defendant MIDDLE ISLAND PLAZA, LLC

LAW OFFICES OF MICHAEL E. PRESSMAN Attorneys for Defendants KEY FOOD & 870 MIDDLE ISLAND

COFFEY MODICA O'MEARA CAPOWSKI Attorneys for Defendants CONFER RBR & MELVILLE SNOW CONTRS.

Christopher Modelewski, J.

Upon the E-file document list numbered 42 to 59, 63 to 84, and 88 to 91 read and considered on the motion by defendants Key Food Stores Co-operative, Inc. and 870 Middle Island Produce Corp. for an order pursuant to CPLR 3212 granting summary judgment in favor of defendant Key Food Stores Co-operative Inc. and against the plaintiff and dismissing the complaint together with any and all cross-claims asserted against it based upon the grounds that defendant Key Food Stores Co-operative, Inc. did not own, possess, control, make special use of, or undertake any responsibility for the maintenance and repair of the area where plaintiff allegedly fell, and based upon the fact that defendant Key Food Stores Co-operative, Inc. did not enter into any agreements with any of the parties named in this action to maintain or repair the area where plaintiff alleges his accident occurred and for an order pursuant to CPLR 3212 granting partial summary judgment in favor of defendant 870 Middle Island Produce Corp. dismissing the plaintiff's complaint in its entirety, along with the cross-claims of Confer RBR, LLC and Melville Snow Contractors, Inc. and the cross-claims of defendant Middle Island Plaza, LLC for common law contribution and indemnity based upon the grounds that the plaintiff's direct action and co-defendants' cross-claims for common law contribution and indemnity are barred by the exclusive remedy doctrine of the Workers' Compensation Law, and on the cross-motion by defendant Middle Island Plaza, LLC for an order pursuant to CPLR 3212 granting it summary judgment on its cross-claim for contractual indemnification as against defendant 870 Middle Island Produce Corp. based upon a lease agreement containing an indemnification clause in favor of defendant Middle Island Plaza, as the landlord for the premises and as against the tenant of the property where plaintiff's accident is alleged to have occurred during his employment; it is

ORDERED that the motion by defendants Key Food Stores Co-operative, Inc. and 870 Middle Island Produce Corp. for an order pursuant to CPLR 3212 granting summary judgment in favor of defendant Key Food Stores Co-operative, Inc. and against the plaintiff and dismissing the complaint together with any and all cross-claims asserted against defendant Key Food Stores Co-operative, Inc. based upon the grounds that defendant Key Food Stores Co-operative, Inc. did not own, possess, control, make special use of, or undertake any responsibility for the maintenance and repair of the area where plaintiff allegedly fell, and based upon the fact that defendant Key Food Stores, Co-operative, Inc. did not enter into any agreements with any of the parties named in this action to maintain or repair the area where plaintiff alleges his accident occurred and for an order pursuant to CPLR 3212 granting partial summary judgment in favor of defendant 870 Middle Island Produce Corp. dismissing the plaintiff's complaint in its entirety, along with the cross-claims of Confer RBR, LLC and Melville Snow Contractors, Inc. and the cross-claims of defendant Middle Island Plaza, LLC for common law contribution and indemnity based upon the grounds that the plaintiff's direct action and co-defendants' cross-claims for common law contribution and indemnity are barred by the exclusive remedy doctrine of the Workers' Compensation Law, are granted for the reasons set forth herein; and it is further

ORDERED that the cross-motion by defendant Middle Island Plaza, LLC for an order pursuant to CPLR 3212 granting summary judgment seeking contractual indemnification against defendant 870 Middle Island Produce Corp. based upon a lease agreement containing an indemnification clause in favor of defendant Middle Island Plaza, as the landlord for the premises and the tenant where plaintiff's accident is alleged to have occurred during his employment, is denied, for the reasons set forth herein.

This is a premises liability action brought by plaintiff seeking damages for an alleged slip and fall on ice and snow on a loading/receiving platform ("the accident site") at 868 Middle Island Road, Middle Island, New York ("the subject premises") on February 14, 2019. Plaintiff commenced this action by filing a summons and complaint on February 16, 2021. An amended complaint was filed on May 26, 2021 (the "complaint"). Issue was joined by defendant Middle Island Plaza, LLC ("Middle Island") by answer dated June 10, 2021, which includes cross-claims for indemnification against co-defendants Key Food Stores Co-operative, Inc. ("Key Food"), 870 Middle Island Produce Corp. ("870 MIP"), Confer RBR, LLC ("Confer") and Melville Snow Contractors, Inc. ("Melville"). Issue was joined by defendants Key Food and 870 MIP by answer dated September 9, 2021, which includes cross-claims against the co-defendants for contribution and indemnification. Issue was joined by defendants Confer and Melville by answer dated September 20, 2021, which includes a cross-claim against the co-defendants for contribution and common law and/or contractual indemnification. All defendants served and filed replies to the respective cross-claims.

Defendants Key Food and 870 MIP now move for an order pursuant to CPLR 3212 granting summary judgment in favor of defendant Key Food Stores Co-operative, Inc. and against the plaintiff seeking dismissal of the complaint together with any and all cross-claims asserted against defendant Key Food on the grounds that defendant Key Food did not own, possess, control, make special use of, or undertake any responsibility for the maintenance and repair of the area where plaintiff allegedly fell, and because defendant Key Food did not enter into any agreements with any of the parties named in this action to maintain or repair the accident site. Defendant 870 MIP seeks an order pursuant to CPLR 3212 granting it partial summary judgment dismissing the plaintiff's complaint in its entirety, along with the cross-claims of Confer and Melville and the cross-claims of defendant Middle Island for common law contribution and indemnity based upon the grounds that plaintiff's direct action and co-defendants' cross-claims for common law contribution and indemnity are barred by the exclusive remedy doctrine of the Workers' Compensation Law. In support of their motion, defendants Key Food and 870 MIP submit, inter alia, a statement of material facts, an attorney affirmation, the pleadings, the sworn affidavit of Paul Gelardi ("Gelardi"), director of contracts, compliance and logistics for defendant Key Food, the sworn affidavit of Joseph Liriano ("Liriano"), manager of defendant 870 MIP, an August 11, 2020 decision from the Workers' Compensation Board in favor of plaintiff and against defendant 870 MIP, as employer concerning the accident on February 14, 2019, and plaintiff's deposition transcript dated December 5, 2022.

Defendants Confer and Melville oppose the motion and submit, inter alia, a response to the moving defendants' statement of facts, an attorney affirmation and a worker's compensation C-3 claim form. Defendants Confer and Melville assert that plaintiff's deposition is incomplete and that no other depositions have taken place. Defendants Confer and Melville further argue that questions of fact remain as to whether defendant Key Food or defendant 870 MIP had control over the premises and whether defendant Key Food or defendant 870 MIP was plaintiff's employer at the time of the alleged accident. Defendants Key Food and 870 MIP reply to the opposition of defendants Confer and Melville asserting that defendant Middle Island admits ownership of the subject premises, that defendant 870 MIP admits it leased the premises and undertook responsibility to maintain and repair the accident site, and defendant 870 MIP admits that it employed plaintiff. Defendants Key Food and 870 MIP further reference plaintiff's bill of particulars, wherein plaintiff admits that he was employed by defendant 870 MIP at the time of the accident, as well as the Workers' Compensation Board award in favor of plaintiff and against defendant 870 MIP, as plaintiff's employer.

Plaintiff also opposes the motion by defendant Key Food and 870 MIP and submits an attorney affirmation. ^[1] Plaintiff alleges that defendants Key Food and 870 MIP have failed to produce admissible evidence as to their duties and responsibilities relative to the accident site. As to defendant Key Food plaintiff asserts it failed to produce evidence that it did not maintain and/or repair the accident site. Plaintiff further asserts that defendants Key Food and 870 MIP have "failed to produce a witness with knowledge of the grocery store's operations for a deposition to affirmatively state that a special use was not made to the [accident site]." In this regard, plaintiff further argues that summary judgment is premature. Defendants Key Food and 870 MIP reply to plaintiff's opposition asserting, inter alia, that defendant 870 MIP, through its manager Liriano, admits that defendant 870 MIP operated and directed the maintenance and/or repairs to the accident site. Further, defendant 870 MIP...