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Morris v. Home Depot USA

Supreme Court of New York, Second Department

July 19, 2017

John Morris, et al., plaintiffs-respondents,
v.
Home Depot USA, defendant third-party plaintiff-appellant; J & J Building Maintenance, Inc., third-party defendant-respondent. Index No. 5201/06

          Argued - December 13, 2016

         D52900 G/htr

          Simmons Jannace DeLuca, LLP, Hauppauge, NY (William T. Collins III of counsel), for defendant third-party plaintiff-appellant.

          Brody, O'Connor & O'Connor, Northport, NY (Thomas M. O'Connor and Patricia A. O'Connor of counsel), for plaintiffs-respondents.

          Mazzara & Small, P.C., Bohemia, NY (Timothy F. Mazzara of counsel), for third-party defendant-respondent.

          CHERYL E. CHAMBERS, J.P. LEONARD B. AUSTIN SYLVIA O. HINDS-RADIX BETSY BARROS, JJ.

          DECISION & ORDER

         In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Whelan, J.), dated August 8, 2014, as denied that branch of its motion which was for summary judgment dismissing the complaint and its cross motion, in effect, for summary judgment on the third-party complaint, and granted that branch of the motion of the third-party defendant which was for summary judgment dismissing the third-party complaint.

         ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

         On January 19, 2004, John Morris (hereinafter the injured plaintiff), an electrician for a nonparty subcontractor, allegedly slipped and fell on frozen snow and ice while walking in the parking lot of a Home Depot store under construction. The injured plaintiff, and his wife suing derivatively, commenced this action against Home Depot, USA (hereinafter Home Depot), to recover damages for, inter alia, personal injuries. After joinder of issue, Home Depot commenced a third-party action against J & J Building Maintenance, Inc. (hereinafter J & J), its snow removal contractor, seeking contractual indemnification, and common-law indemnification and contribution. The Supreme Court denied that branch of Home Depot's motion which was for summary judgment dismissing the complaint and its cross motion, in effect, for summary judgment on the third-party complaint. The court also granted that branch of J & J's motion which was for summary judgment dismissing the third-party complaint. Home Depot appeals.

         "Under the so-called 'storm in progress' rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm" (Marchese v Skenderi, 51 A.D.3d 642, 642; see Solazzo v New York City Tr. Auth, 6 N.Y.3d 734, 735; Rabinowitz v Marcovecchio, 119 A.D.3d 762). However, if a storm is ongoing, and a property owner elects to remove snow, it must do so with reasonable care or it could be held liable for creating or exacerbating a natural hazard created by the storm (see Anderson v Landmark at Eastview, Inc., 129 A.D.3d 750, 751; Gwinn v Christina's Polish Rest., Inc., 117 A.D.3d 789, 789; Wei Wen Xie v Ye Jiang Yong, 111 A.D.3d 617, 618). In such an instance, a property owner moving for summary judgment in a slip-and-fall case must demonstrate, in support of its motion, that the snow removal efforts it undertook neither created nor exacerbated the allegedly hazardous condition which caused the injured plaintiff to fall (see DeMonte v Chestnut Oaks at Chappaqua, 134 A.D.3d 662, 664; Anderson v Landmark at Eastview, Inc., 129 A.D.3d at 751; Kantor v Leisure Glen Homeowners Assn., Inc., 95 A.D.3d 1177, 1177).

         Here, Home Depot failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that there was a storm in progress at the time of the injured plaintiff's accident or that it did not have a reasonable opportunity after the cessation of the storm to remedy the allegedly dangerous condition (see Valentine v City of New York, 57 N.Y.2d 932, 933-934; Rusin v City of New York, 133 A.D.3d 648; Fenner v 1011 Rte. 109 Corp., 122 A.D.3d 669). The climatological data submitted by Home Depot showed that there was an accumulation of about three inches of snow, which had ceased to fall by 7:00 p.m. on January 18, 2004, about 12 hours prior to the accident, and that the temperature dropped to below freezing by 9:00p.m., about 10hours prior to the accident, and remained below freezing through the time of the accident. Thus, Home Depot failed to establish, prima facie, that it did not have a reasonable time to ameliorate the snow and ice condition in the parking lot (see Valentine v City of New York, 57 N.Y.2d 932). Home Depot also failed to establish, prima facie, that it did not engage in any snow removal work during the storm or that the snow removal efforts undertaken by J & J on its behalf on January 18, 2004, did not create the allegedly hazardous icy condition which resulted in the injured plaintiff's injuries (see DeMonte v Chestnut Oaks at Chappaqua, 134 A.D.3d at 664; Viera v Rymdzionek, 112 A.D.3d 915, 916; Braun v Weissman, 68 A.D.3d 797, 798). Home Depot could not satisfy its initial burden as the movant for summary judgment merely by pointing to gaps in the plaintiffs' case (see generally Harmitt v Riverstone Assoc., 123 A.D.3d 1089, 1091; Plotits v Houaphing D. Chaou, LLC, 81 A.D.3d 620; Martinez v Khaimov, 74 A.D.3d 1031). Since Home Depot failed to meet its burden on its motion for summary judgment, the Supreme Court properly denied that branch of its motion which was for summary judgment dismissing the complaint, without regard to the sufficiency of the plaintiffs' opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853; Lindquist v Scarfogliero, 129 A.D.3d 789; Harmitt v Riverstone Assoc., 123 A.D.3d at 1090; Arashkovitch v City of New York, 123 A.D.3d 853, 854; Viera v Rymdzionek, 112 A.D.3d at 916).

         The Supreme Court also properly denied Home Depot's cross motion, in effect, for summary judgment on the third-party complaint. To sustain its third-party cause of action for contribution, Home Depot was required to show that J & J owed it a duty of reasonable care independent of its contractual obligations (see Abramowitz v Home Depot USA, Inc., 79 A.D.3d 675, 677; Phillips v Young Men's Christian Assn., 215 A.D.2d 825, 827; cf. Sommer v Federal Signal Corp., 79 N.Y.2d 540, 551-552), or that a duty was owed to the plaintiffs as injured parties and that a breach of this duty contributed to the alleged injuries (see Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 125 A.D.2d 754, 756, affd 71 N.Y.2d 599; Baratta v Home Depot USA, 303 A.D.2d 434). J & J's snow and ice removal obligation was not a comprehensive and exclusive property maintenance obligation intended to displace Home Depot's duty to safely maintain its property (see Dorestant v Snow, Inc., 274 A.D.2d 542, 543; Bugiada v Iko, 274 A.D.2d 368, 368-369; Riekers v Gold Coast Plaza, 255 A.D.2d 373). Nor did Home Depot submit any evidence establishing that the plaintiffs detrimentally relied upon J & J's continued performance of its snow removal obligations or that J & J's actions advanced to such a point as to have launched a force or instrument of harm (see Bugiada v Iko, 274 A.D.2d at 369; Bourk v National Cleaning, 174 A.D.2d 827, 828). Since Home Depot failed to establish, prima facie, an independent duty owed to it by J & J, or a duty J & J owed to the plaintiffs, the Supreme Court properly denied that branch of Home Depot's cross motion which was for summary judgment on the third-party cause of action seeking contribution (see Abramowitz v Home Depot USA, Inc., 79 A.D.3d 675).

         With respect to contractual indemnification, a party's right to contractual indemnification depends upon the specific language of the relevant contract (see Goodlow v 724 Fifth Ave. Realty, LLC, 127 A.D.3d 1138, 1140; Desena v North Shore Hebrew Academy, 119 A.D.3d 631, 636; Roldan v New York Univ., 81 A.D.3d 625, 628). "The promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances" (Goodlow v 724 Fifth Ave. Realty, LLC, 127 A.D.3d at 1140; see Hooper Assoc. v AGS Computers, 74 N.Y.2d 487, 491-492; Roldan v New York Univ., 81 A.D.3d at 628). Here, Home Depot failed to establish, prima facie, a promise by J & J to indemnify it.

         With respect to common-law indemnification, "[i]ndemnity . . . involves an attempt to shift the entire loss from one who is compelled to pay for a loss, without regard to his own fault, to another person who should more properly bear responsibility for that loss" (County of Westchester v Welton Becket Assoc.,102 A.D.2d 34, 46-47, affd66 N.Y.2d 642). Where, as here, the right to indemnification is not expressly provided by the parties' contract, the right may be implied by law to prevent an unfair result or the unjust enrichment of one party at the expense of the other (see Mas v Two Bridges Assoc.,75 N.Y.2d 680, 690; County of Westchester v Welton Becket Assoc., 102 A.D.2d at 47). To sustain a cause of action for common-law indemnification, the party seeking indemnity must prove not only that it was not negligent, but must also prove that the proposed indemnitor's negligence contributed to the cause of the accident (see Mikelatos v Theofilaktidis,105 A.D.3d 822, 824). Here, Home Depot failed to establish, prima facie, that it did not create the dangerous condition that allegedly caused the injured plaintiff s accident and did not have actual or constructive notice of that condition (see Chilinski v LMJContr., Inc.,137 A.D.3d 1185, 1187). Accordingly, Home Depot failed to demonstrate, prima facie, that it was not negligent in connection with the injured plaintiff's accident, ...


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