DORIS LING-COHAN, JUDGE.
2520 BQE /Associates, LLC (BQE) moves, pursuant to CPLR 3212, for summary judgment dismissing plaintiffs' complaint and any cross claims against it or, alternatively, for summary judgment on indemnity against Time Warner Cable (Time Warner). Time Warner moves, pursuant to CPLR 3212, for summary judgment, dismissing plaintiffs' complaint and any cross claims against it. The motions are consolidated for disposition and decided as noted below.
Wilfrido Dominguez (plaintiff) was a deliveryman working for Iron Mountain, Inc. (Iron Mountain) and, on March 4, 2009, he was making a scheduled delivery and pick up at a building (the Building) located at 2520 Brooklyn Queens Expressway West, Woodside, New York, when he slipped and fell (bill of particulars, items 5-6, 28). Rosa Dominguez is plaintiff's wife and she is suing for loss
of services arising out of plaintiff's accident (complaint, II 45-46).
BQE was the owner of the Building and it leased the basement, half of the first floor, the entire second floor and the adjacent parking lot to Time Warner and separately leased the remainder of the first floor to a perfume bottling company (O'Connor EBT, at 8-10).
Time Warner was a triple net lessee of the Building and it was responsible for maintenance of the Building (id. at 13, 28; Azzaro EBT, at 15). Iron Mountain was a company responsible for long-term file storage for Time Warner and it arranged for pick up and delivery of files from the Building (id. at 30-31). On March 4, 2009, plaintiff was employed by it as a driver (plaintiff EBT dated June 8, 2011 [plaintiff 2011 EBT], at 21; bill of particulars, item 28).
Executive Snow Control (Executive) was a professional snow and ice removal company that entered into a contract with Time Warner (the Snow Removal Contract) in 2008 for snow and ice removal at various locations including at the Building (Azzaro EBT, at 21, 51, 69-70).
Plaintiff contends that, on March 4, 2009, as part of a regular delivery, he went to the Building to drop off and pick up a shoe-box sized package, each weighing approximately 25-30 kilograms (55-65 pounds), from Time Warner (plaintiff January 4 and 5, 2012 EBT [plaintiff 2012 EBT], at 45, 51-52). He states that it had snowed the night before and that he arrived at about 10:30-11 a.m., that he parked on the street in front of the Building, walked the 15-20 feet down a path to a four to five step staircase that leads to the Building's entrance and that he observed between 8 and 10 inches of snow on the ground and on the sides of the staircase pushed to each side (id. at 45, 50-51, 57-60).
Plaintiff also states that there was no sand or salt on the steps and that, as he was returning to his van after making the delivery, he slipped and fell on clear ice that was on the platform at the top of the staircase (id. at 61-62, 75-76, 163). He asserts that after he slipped, he fell on the ground, causing him to injure his right knee and right shoulder and, as a result, he was forced to undergo surgeries to repair his knee and shoulder (plaintiff 2011 EBT, at 55; plaintiff 2012 EBT, at 89, 92; bill of particulars, item 18).
BQE states that, on June 19, 1989, its predecessor, RMAQ Realty (RMAQ) entered into a lease with American Cablevision of Queens, Inc. (Cablevision) for the Building, that there were subsequent amendments (together, the Lease), that on December 12, 2007, RMAQ conveyed its ownership interest to BQE, that Cablevision was purchased by Time Warner and that Cablevision assigned its interest to Time Warner.
BQE contends that, under the Lease, it was an out-of-possession landlord without any responsibility for maintaining the premises, that Time Warner actively maintained the premises, having numerous maintenance personnel at the Building and that Time Warner arranged for snow and ice removal with Executive, pursuant to the Snow Removal Contract (O'Connor EBT, at 8, 10, 15, 24, 28, 34, 37; Azzaro EBT, at 15, 21, 42, 51, 69-70).
Time Warner states that the steps and platform on the exterior stairs were made of concrete and that they were "common space" (Azzaro EBT at 18, 32). It further states that it hired Executive to perform snow and ice removal under the Snow Removal Contract, that it had more than 10 maintenance personnel at the Building with shovels and salt available and that its maintenance personnel might clear ...