York v. Thompson Station Inc.

172 A.D.3d 1593

100 N.Y.S.3d 707

Deshawn YORK, Respondent,

v. THOMPSON STATION INC. et al., Appellants,andEast Coast Services II Inc. et al., Respondents, et al., Defendants.

527272

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

Calendar Date: March 27, 2019

Decided and Entered: May 9, 2019

Santacrose & Frary, Albany (Keith M. Frary of counsel), for appellants.

Finkelstein & Partners, LLP, Newburgh (James W. Shuttleworth of counsel), for Deshawn York, respondent.

MacVean, Lewis, Sherwin & McDermott, PC, Middletown (Jeffrey D. Sherwin of counsel), for East Coast Services II Inc., respondent.

The Law Offices of Craig P. Curcio, Middletown (Deborah J. Bookwalter of counsel), for Poley Paving Co., respondent.

Before: Egan Jr., J.P., Devine, Aarons and Rumsey, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P.Appeal from an order of the Supreme Court (Schick, J.), entered December 5, 2017 in Sullivan County, which, among other things, partially denied a motion by defendants Thompson Station Inc., McKinley Inc. and Phillips Edison & Company Ltd. for summary judgment dismissing the complaint against them.

Defendant Shop–Rite Supermarkets, Inc. operates a grocery store located within a shopping plaza in the Village of Monticello, Sullivan County, which is owned by defendant Thompson Station Inc. and managed by defendant McKinley Inc. In October 2014, McKinley entered into a contract with defendant East Coast Services II Inc. to perform snow removal services for the subject premises for the 2014–2015 winter season. On November 14, 2014, East Coast Services II, in turn, subcontracted defendant Poley Paving Co. to perform said services.

At approximately 8:40 a.m. on November 30, 2014, plaintiff slipped and fell on a patch of ice in the parking lot in front of Shop–Rite's store, sustaining injuries to her head and wrist. Plaintiff thereafter commenced this negligence action alleging that defendants failed to maintain the property in a reasonably safe condition.¹ As part of their joint answer, Thompson Station, McKinley and defendant Phillips Edison & Company Ltd., a prior property manager for the subject premises, interposed cross claims against, as relevant here, East Coast Services II and Poley Paving for contractual and/or common-law indemnity. Following joinder of issue of the remaining defendants and discovery, Thompson Station, McKinley and Phillips Edison moved for summary judgment dismissing the complaint against them, arguing, among other things, that they owed no duty of care to plaintiff and that neither Thompson Station nor McKinley had actual or constructive notice of the icy condition. In addition, East Coast Services II and Poley Paving each separately moved for summary judgment dismissing the complaint against them and the cross claims asserted by Thompson Station, McKinley and Phillips Edison. Supreme Court, among other things, granted the motions by East Coast Services II and Poley Paving, dismissing the complaint and cross claims against them, and partially granted the motion by Thompson Station, McKinley and Phillips Edison to the extent that it dismissed the complaint against Phillips Edison, but otherwise denied the motion as to Thompson Station and McKinley.² Thompson Station and McKinley now appeal, arguing that Supreme Court erred in denying their motion for summary judgment dismissing the complaint against them and in dismissing their cross claims against East Coast Services II and Poley Paving.

We affirm. It is well settled that "[a] defendant seeking summary judgment in a slip and fall action must demonstrate that it maintained its property in a reasonably safe condition and that it did not create the alleged dangerous condition giving rise to the plaintiff's injuries or have actual or constructive notice of such condition" ( Hurley v. City of Glens Falls , 160 A.D.3d 1188, 1188, 73 N.Y.S.3d 800 [2018]see Riozzi v. 30 Kingston Realty Corp. , 112 A.D.3d 1033, 1033–1034, 976 N.Y.S.2d 318 [2013] ; Tate v. Golub Props., Inc. , 103 A.D.3d 1080, 1081, 960 N.Y.S.2d 260 [2013] ; Richardson v. Rotterdam Sq. Mall , 289 A.D.2d 679, 679, 734 N.Y.S.2d 303 [2001] ). Here, although Supreme Court did not address each element of the applicable standard in it decision, even assuming, without deciding, that Thompson Station and McKinley did not create the alleged icy condition, they nevertheless failed to meet their initial burden of establishing as a matter of law that no triable issue of fact exists with regard to the issue of constructive notice (see Hurley v. City of Glens Falls , 160 A.D.3d at 1189, 73 N.Y.S.3d 800 ). As relevant here, "to demonstrate a lack of constructive notice, [Thompson Station and McKinley were] required to show that the condition was not visible and apparent and had not existed for a sufficient period of time prior to the accident to permit [them] to discover it and take corrective action" ( Riozzi v. 30 Kingston Realty Corp. , 112 A.D.3d at 1034, 976 N.Y.S.2d 318 [internal quotation marks, brackets and citations omitted]; see Managault v. Rensselaer Polytechnic Inst. , 62 A.D.3d 1196, 1197, 879 N.Y.S.2d 612 [2009] ).

In support of their motion, Thompson Station and McKinley proffered, among other things, the pretrial deposition testimony of plaintiff, Stephen Poley, the vice-president for Poley Paving, and two Shop–Rite employees – Raymond Robinson, a cart person, and Anthony Faber, an assistant store manager. Plaintiff testified that she observed several patches of snow and ice in the parking lot on the morning in question. Upon exiting the store and walking to her car, plaintiff's left foot slipped forward, causing her to fall on her right side. Although she testified that she did not see the patch of ice that she slipped on prior to falling, she stated that, while on the ground, she could readily see the thick, "whitish color" patch of ice that she had slipped on. Following the incident, Faber and Robinson confirmed that there was a visible patch of ice where plaintiff had fallen, as well as some accumulated snow nearby, and Robinson testified that he thereafter spread rock salt over the subject patch of ice as plaintiff was waiting for the ambulance.

Poley testified that the most recent snowfall event that required the subject lot to be plowed had occurred on November 26, 2014 – four days prior to this incident – and both Robinson and Faber testified that no precipitation had fallen on the morning in question and that the parking lot was dry, with the exception of a few snow banks. Although Poley testified that Poley Paving would monitor the weather, salt or sand the lot as needed and inspect the lot on a daily basis, no evidence was presented with regard to when Poley Paving had...