Creedon & Gill P.C.

24 Woodbine Ave  Suite 8  Northport  New York 11768

(631) 656-9220  f (631) 686-6718 peter@creedongill.com

 

May 2, 2016

 

 

I SNOW/ICE CASES ARE PREMISES CASES : TRADITIONALLY ANALYZED BY

 

1.         LOOKING TO DEFENDANTS OWNERSHIP, OPERATION, CONTROL SPECIAL USE

2.         INVOKING DEFENDANT'S DUTY TO MAINTAIN PREMISES IN SAFE CONDITION

3.         ASKING IF DEFENDANT HAD NOTICE OF OR CREATED DANGEROUS CONDTION

            a.  INCANTALUPO V. VILLA ROMA 44 Misc.3d 1221(A), 2014 WL

 

STORM IN PROGRESS RULE   NYC CODE CONTRACTORS INDEMNIFICATION

 

II SPECIFIC TYPES OF DANGEROUS CONDITIONS AND PROOFS ARE MANY

 

1.         1. USUALLY TURN ON THE QUALITY AND QUANTITY OF A DEFENDANT'S PROOF

            a. Dont want a finding of an "inadequate showing of sufficiency of defendants efforts"

            b. COLEY V. NYCHA --- N.Y.S.2d ----, 2015 WL  232247 N.Y.A.D. 1 Dept.,2015

           

2.         1. GENERAL AWARENESS OF RECURRING CONDITION NOT INSTANT LIABLITY

            (a) INCANTALUPO V. VILLA ROMA 44 Misc.3d 1221(A), WL 3970297 N.Y.Sup.,2014

 

3          1. SLIP ON TRACKED SNOW NOT AUTOMATIC LIABILITY

            a. Slip  and fall on the floor of a bank branch

            b. not obligated to continuously mop all moisture resulting from tracked-in

            c. employees were instructed to mop water on the floor as soon as they saw it.

            d. submitted a surveillance video and deposition testimony demonstrating thaat t

                        i. the area was mopped with a dry mop less than 30 minutes before the accident, and,

                        ii  in the interim, other customers traversed the same area without incident.

            e. SEUNG CHUL NA V. JP MORGAN. 123 A.D.3d 903 N.Y.A.D. 2 Dept.,2014

 

            2. BUT TRACKED IN WATER MAY REQUIRE MATS & ISNT OBVIOUS CONDITION

 

a. Defendants could have created a dangerous condition hosing down building perimeter

b. Without taking precautions to keep water from being tracked onto the marble lobby floor.

c. Slippery conditions created during cleaning a premises can give rise to liability

d. Reasonable care does not require an owner to completely cover a lobby floor with mats

e. It may require the placement of at least some mats 

f. An open and obvious condition relieves the owner of a duty to warn about the danger,

g. But not of the duty to maintain the premises in a reasonably safe condition 

h. DIVETRI V. ABM JANITORIAL 119 A.D.3d 486N.Y.A.D. 1 Dept.,2014.

 

 

 

4.         1. WIN A CASE BY PUTTING THE BURDEN ON THE PLAINTIFF

 

            a. Case won with Testimony Lot Shoveled, Salted, Sanded post Snow  Day Before

            b. Plaintiff Cannot Rebut – In particular cannot Describe Condition With Specificity

            c. VIDAL V CITY OF NEW YORK  122 A.D.3d 419N.Y.A.D. 1 Dept.,2014

 

5.         1. WINNING EXPERT TESTIMONY IS PRECISE EXPERT TESTIMONY

 

            a. Plaintiff expert's affidavit ... was based on undisputed meteorological records,

            b. took plaintiff's description of the ice  into account, and

            c explained how the meteorological events led to the formation of that particular patch of ice       

            2. IMPRECISE PLAINTIFF TESTIMONY NOT NECESSARILY FATAL

           

            a. Plaintiff testified “dirty” “snow" "layers on top of layers,” “slushy ice”

            b.  “clean, like slippery, flat” and "had a little snow on top of it".

            c. An affidavit explained that she fell on a patch of snow and ice that was

            d. About two feet by three "thick, flat, hard, and dirty, as if it had existed for several days"”

 

            e. The Court wrote: Any inconsistencies in how plaintiff described the patch of snow and ice

            f. Simply create a triable issue of fact

 

            3. ICE LEFT AFTER CLEANING ALONE CAN BE A DANGEROUS CONDITION

            a. The Court wrote: Contrary to the City's argument, that snow and ice left on a sidewalk

            b.  after a storm can constitute an “unusual and dangerous condition”

 

            4. ABOVE SEE RODRIGUEZ V. WOODS 121 A.D.3d 474N.Y.A.D. 1 Dept.,2014.

 

6.         1. SEE ALSO LAKINS V. 171 E. 205TH STREET 118 A.D.3d 451N.Y.A.D. 1 Dept.,2014.

 

            a. Claimed Lack Of Notice Defeated By Climatological Report

            b. Plaintiff's Inability To Specify Defect Before Fall Not Fatal

 

7.         1. LOCATION: UNKNOWN WHERE PLAINTIFF ACTUALLY FELL

 

            a. Fall crossing mound of snow, action against parking lot owner, operator, contractor. 

            b. Management Company alleges only responsible for maintaining the parking area

            c. Not responsible for maintaining the curb and sidewalk

            d. (however)  the precise location of fall cannot be determined from the record

 

            e. LAGUARINA V. METROPOLITAN TRANSIT 109 A.D.3d 793, N.Y.A.D. 2 Dept.,2014

 

 

8.         1, SNOW MOUNDS SEE ALSO PAYTON V. 5391 TRANSIT 107 A.D.3d 1461 AD4 2013

 

            a. Snow Mound Blocking Parking Space "Created" By Snow Removal K'or

            b. Owner could  be indemnified to extent of Contractor's fault

 

 

 

 

 

 

 

III STORM IN PROGRESS RULE

 

1.         1. NOT RESPONSIBLE FOR SNOW OR ICE THAT ACCUMULATES DURING A STORM

            a. Until an adequate period of time has passed following the cessation of the storm

            b. To allow the owner an opportunity to ameliorate the hazards“

            c. Once a property owner elects to engage in snow removal activities,

                        i   the owner must act with reasonable care so as to

                        ii.  avoid creating a hazardous condition or exacerbating a natural hazard”

            e. HARMITT V. RIVERSTONE ASSOCIATES 123 A.D.3d 1089, N.Y.A.D. 2 Dept.,2014

 

2.         1. BUT A STORM IN PROGRESS NOT A BLANKET INSULATION

            a. Clearing Improperly During Storm and Creating "Mounds of snow?".

            b. Cannot satisfy by pointing to gaps in the plaintiff's case

            c. HARMITT SUPRA and  see generally Plotits v. Houaphing D. Chaou, LLC, 81 AD3d 620.

 

 

3.         1. BLUE PRINT FOR FAILURE TO CARRY BURDEN IN STORM IN PROGRESS CASE

 

            a. Climate Data Submitted Without Key

            b. No Proof When Last Inspections Done

            c. Question Of Pre-Existing Ice Exacerbated By Light Freezing Rain

            d. WOMBLE V. NYU HOSPITALS CENTER 123 A.D.3d 469, N.Y.A.D. 1 Dept.,2014

 

 

4.         1. WEAK PROOF, CONFLICTED TESTIMONY LOSE STORM IN PROGRESS CASE

 

            a. Although a lull in the storm does not impose a duty to remove the accumulations                                   i. ( see Mazzella v. City of New York, 72 A.D.3d 755, 899 N.Y.S.2d 291;

            b.  The defendants did not submit any climatological data in support of their motion,

            c.  The deposition testimony of submitted witnesses presented conflicting evidence

                        i. As to how much snow fell and at what time the storm stopped, if at all,

                        ii. In relation to the time of the plaintiff's accident.

            d. These submissions failed to eliminate triable issues of fact as to whether

                        i. A reasonably sufficient time elapsed after cessation to take remedial measures

            e. FENNER V. 1011 ROUTE 109 CORP. 122 A.D.3d 669 N.Y.A.D. 2 Dept.,2014

 

5.         1. CLIMATOLIGAL DATA, IF AMBIVALENT, REQUIRES EXPERT INTERPRETATION

 

a.       High Temps ranged from 35 to 53 in the 26–hour period prior to plaintiff's fall, b

b.      Daily Temps two weeks leading up consistently at or below freezing temperatures.

c.       Defendant failed to show that ice under the specific conditions could not have existed. 

d.   Defendant relies solely on climatological reports without expert or other evidence

e.  SIKORA V. EARTH LEASING 46 Misc.3d 279, 994 N.Y.S.2d 527 N.Y.Sup.,2014.

 

6.                  1.   LACK OF NOTICE DEFEATED BY CLIMATOLOGICAL REPORT

 

a. Defendant established it did not have notice of icy condition causing plaintiffs fall.

b. Including plaintiff's deposition saying she never observed ice  on the ground,

c. And affidavit of principal who bf. fall never got complaints of a snow/ice in the lot  

d. But Plaintiff raised triable issue of fact by submitting climatological data revealing

e. Precipitation in days preceding leaving an inch of “snow/ice” the day of plaintiff's accident

 

       2.  PLAINTIFF'S INABILITY TO SPECIFY DEFECT BEFORE FALL NOT FATAL

 

a (Plaintiff) testified that she knew she slipped on ice because

b. “[w]hen I was laying on the ground it was cold and wet that night.”

c. This may be fairly interpreted that plaintiff felt the ice on the ground after she fell,

d. As she consistently stated in her affidavit submitted in opposition to the motion.

e. LAKINS V. 171 E. 205TH STREET 118 A.D.3d 451, N.Y.A.D. 1 Dept.,2014.

 

 

7. 1. See also LITTLETON V. AMBERLAND. 942 N.Y.S.2d 586 N.Y.A.D. 2 Dept.,2012.

 

      2. RESIDUAL SNOW IN PLOWED-AREAS NOT THE CREATION OF A DANGER

      3. BUT MOUNDING SNOW MAY CREATE A DANGEROUS CONDITION

 

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IV NYC ADMINISTRATIVE CODE HOLDS ABUTTING OWNERS RESPONSIBE

 

1.         1. ADMINISTRATIVE CODE § 7–210 IMPOSES UPON OWNERS OF REAL PROPERTY

            a. A non-delegable duty to maintain sidewalk abutting premises in a reasonably safe condition     b. imposes tort liability on the owner for injuries caused as a result of a failure to do so

            c. Although the duty is non-delegable, § 7–210 does not impose strict liability

            d. SALINAS V. WELLS FARGO 45 Misc.3d 1216(A), Slip Copy, 2014 WL 5859396

 

2.         1. ADMINISTRATIVE CODE § 7–210 WANTS A PATH FROM STREET TO WALK

            a. Owner discharges duty when snow-free path is cleared between the street and the sidewalk       b. Within a reasonable walking distance of the property, since it is not

            c. Reasonably foreseeable that a person would attempt to climb

                        i.  Over a significantly obstructive curbside mound of snow

                        ii. Rather than walk to a nearby unobstructed

            d. MCKENZIE V. CITY OF NEW YORK 116 A.D.3d 526, N.Y.A.D. 1 Dept.,2014.

 

 

3.         1. ADMINISTRATIVE CODE 16-123(a) DEFINES END OF STORM IN PROGRESS

 

            a. Owners of abutting properties have four hours

            b. From the time the precipitation ceases,

                        i. Excluding the hours between 9:00 p.m. and 7:00 a.m.,

            c. To clear ice" and "snow" from the sidewalk.

            d. SCHRON V. JEAN'S FINE WINE 114 A.D.3d 659, N.Y.A.D. 2 Dept.,2014

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V         SNOW REMOVAL CONTRACTS

 

1.         1. SNOW CONTRACTOR GENERALLY HAS NO DUTY TO 3RD PARTIES

 

a. Case involved.  Slip and fall by airport employee on black ice in parking lot.

b. As a general rule, a limited contractual obligation to provide snow removal services                  c. Does not render the contractor liable in tort for the personal injuries of third parties                       d. Espinal v. Melville Snow Contrs., 98 N.Y.2d 136 codifies Court of Appeals exceptions

           

                                    i contracting party negligently launches a force or instrument of harm

                                                1. (generally an exacerbation)

                                    ii. plaintiff detrimentally relies on the continued performance of contractor

                                    iii contractor  entirely displaced owner's duty to maintain premises safely 

 

            2. CONTRACTOR CAN ESTABLISH DEFENSE WITH LIMITED PROOF

                        a. prima facie showing that the plaintiff was not a party to its snow removal contract                     b. If plaintiff did not allege an "Espinal" exception

                                    i. The contractor need not first disprove them.  

                                    ii. Same burden and outcome on owner

 

 

          3.  BURDEN THEN ON OWNER PLAINTIFF TO REBUT         

                        a.  Here Owner and the plaintiff offered no evidence that Contractor

                                    i Launched a instrument of harm by creating or exacerbating the icy condition                               ii Or snow removal contract was a comprehensive and exclusive agreement that                            iii. Entirely displaced the Owners duty to maintain the premises or that

                                    iv. The plaintiff relied upon Contractors proper performance of its contract

b. DIAZ V. PORT AUTHORITY 20 A.D.3d 611 N.Y.A.D. 2 Dept. 2014

 

 

 

4.      "COMPREHENSIVE & EXCLUSIVE" K REPLACES ALL SAFETY RESPONSIBILITY

 

a.       Deciding Whether an agreement is “comprehensive and exclusive”,

b.      Whether K assumed all owner's safety-related obligations re the premises

c.       Including the sidewalk

d.      In this case the Master Listing Agreement was a real estate broker's agreement to

e.       Not an agreement to manage or maintain the real property

f.        Much less a “comprehensive and exclusive management and maintenance contract” which displaced Wells Fargo's non-delegable duty as a landowner to maintain the sidewalk  

 g. SALINAS V. WELLS FARGO. 45 Misc.3d 1216(A), WL 5859396 N.Y.Sup.,2014

 

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VI. CONTRIBUTION, COMMON LAW AND CONTRACTUAL INDEMNIFICATION

 

1.  1. CONTRACTUAL INDEMNIFICATION DEPENDS ON SPECIFIC LANGUAGE

      a. The promise to indemnify must be clearly implied from the language and

      b. purpose of the entire agreement and the surrounding circumstances

 

     2. INDEMNIFYING FAULT OF ANOTHER ONLY IF  LANGUAGE "UNMISTAKABLE

      a. Lease didn't establish contractor responsible to make structural repairs to the sidewalk

      b. Contractor limited to the  removal of debris, snow and ice.

      c. Plaintiff she  tripped and fell due to a structural defect in the sidewalk,

      d. Liability in this therefore stem from the owners own negligence, and not contractors

      e Indemnifying Owner for own negligence may violate General Obligations Law 5–321. 

 

      3. From ALAYEV V. JUSTER ASSOCIATES 122 A.D.3d 886, N.Y.A.D. 2 Dept.,2014

2. 1.  COMMON LAW CONTRIBUTION CAN ARISES W/ OR WITHOUT CONTRACT

    2.  WITH CONTRACT WHERE  

 

    a. Snow removal contract was a comprehensive and exclusive agreement that               

    b. Entirely displaced the Owners duty to maintain the premises

    c. Owner would be fully indemnified as Vicariously Liable

 

    3. OR WITH A CONTRACT WHERE

 

d. The plaintiff relied upon Contractors continued proper performance of its contract or

e (Most common) K'or Launched a instrument of harm by creating or exacerbating a condition

f. Owner could indemnified to extent of Contractors Negligence

g. DIAZ V. PORT AUTHORITY 20 A.D.3d 611 N.Y.A.D. 2 Dept. 2014

 

    4. COMMON LAW INDEMNIFICATION WHEN CONTRACTOR SOLEY LIABLE

a. Owner would be fully indemnified in situation of "vicarious liability" but

b. But common-law indemnification claim properly dismissed where

c. Contractor  established, prima facie accident was not due solely to its

d. Negligent performance or nonperformance of an act solely within its province

      

5. CONTRACTUAL INDEMNIFICATION IF CONTRACTUAL PERFORMANCE FAILS

 

      a. Owner would be indemnified up to extent of Contractor's fault

      b. Contractual indemnification claim  should not have dismissed because

      c. Contractor failed to establish, prima facie, that it did not breach the relevant contract

      d. By failing to perform one or more of the services for which it was contracted

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6 FROM ABERMAN V. RETAIL PROPERTY 92 A.D.3d 703, N.Y.A.D. 2 Dept.,2012

3.  1. NEGLIGENCE ISSUES CAN PRECLUDE DECISION ON INDEMNIFICATION CLAIMS.

 

      a. MANAGER/OWNER MIGHT  BE  NEGLIGENT DIRECTING K'OR  TO CLEAR         

      b. Triable issues of fact whether Managing Company  had constructive notice of the hazard

      c. and whether negligent in failing to direct Contractor to clear pursuant to contract.  

 

      d. CONTRACTOR MAY BE NEGLIGENT IN  EXACERBATING CONDITIONS

      e. Contractor established prima facie by showing Plaintiff not party to contract but

      f. Plaintiffs raised a triable issue of fact as to whether

      g. The Contractors alleged negligence created or exacerbated the hazard

      h. (Also then Creates A Possible Scenario Of Common Law Contribution)

      i.  Landlord could be indemnified up to extent of Contractors Negligence.

     2. FROM LAGUARINA V. METROPOLITAN 971 N.Y.S.2d 173N.Y.A.D. 2 Dept.,2014

4. 1. CONTRACTUAL INDEMNICATION POSSIBLE IF CONTRACTOR NEGLIGENT

a. dangerous condition consisted of a mound of snow parking space next to the front entrance

b. Plaintiff had to climb over to reach his vehicle parked in the second parking space.

c. Deposition testimony of plaintiff, the restaurant manager, and third-party defendant

d. raised a triable issue whether the snow mound was created by third-party defendant's

e. removal of snow from the parking lot, removal of snow from the sidewalk, or both,

f.  and whether defendants were aware of the dangerous condition

g. court properly denied both motions with respect to contractual indemnification inasmuch as

h. triable issue whether K'or negligent in the performance of the snow removal contract

 

     2. FROM PAYTON V. 5391 TRANSIT 107 A.D.3d 1461 N.Y.A.D. 4 Dept.,2013

 

5. 1.See also BERMINGHAM V. PETER, SR. 94 A.D.3d 1424 N.Y.A.D. 4 Dept.,2012.

 

    2. COMMON LAW INDEMNIFICATION POSSIBLE IF K'OR SOLELY RESPONSIBLE

 

      a. Black ice in lot. Owner commenced third-party action against its snow removal contractor

      b. (The Court) properly refused to dismiss the common-law indemnification claim.

      c. (The Contractor) failed to establish

            (i) that plaintiff's accident was not attributable to his negligent performance or nonperformance    (ii)of an act solely within his province under the contract with defendant, or

      d. That (the Owner)  was actively negligent

      e. Owner could be fully indemnified since only "Vicariously" Liable.

 

      3.   BUT NO COMMON LAW CONTRIBUTION IN CASE WITHOUT COMPREHENSIVE K.

 

      a.  (The ) dismissed the contribution claim.

      b.  (The Contractor) established that his contract with defendant was not

            (i) “a comprehensive and exclusive agreement

            (ii) which entirely displaced [defendant's] duty to maintain the premises in a safe condition” 

 

 

 

6. 1. See also LITTLETON V. AMBERLAND. 942 N.Y.S.2d 586 N.Y.A.D. 2 Dept.,2012.

 

     2. NO COMMON LAW INDEMNIFICATION WHERE K'OR NOT SOLELY LIABLE "

       a. Court properly granted motion dismissing the common-law indemnification claim

       b. Upon demonstrati(on) that accident was not due solely to its K'ors

                   (i) negligent performance or nonperformance of

                   (ii) an act solely within its province.

 

       c. And Owner failed to establish, prima facie, that it did not have

                   (i) actual or

                   (ii) constructive notice of the dangerous condition.

   3. CONTRIBUTION OR K INDEMNIFICATION POSSIBLE FROM  EXACERBATON

            a "(M)ere act of plowing, while leaving some residual snow or ice on the plowed area, is

            b. Insufficient to demonstrate a snow removal contractor created a dangerous conditionre

            c. But If a contractor creates and/or exacerbates a snow and ice condition by their activities          d. Such constitutes an affirmative act precluding dismissal of a claim for contribution. 

                        (i) K'or did not simply leave residual snow in the area by plowing;

                        (ii) K'or created 2 snow piles allegedly causing ice acumulation on stairs.

 

7. 1. Finally see PERALES V. FIRST COLUMBIA  932 N.Y.S.2d 211 AD3rd 2011

2. CONTRACTOR KNOCKED OUT A COMMON LAW CONTRIBUTION CLAIM BY     STRONG PROOF OF EXACTLY HOW IT PERFORMED ITS DUTIES, AND THAT THE            OWNER ITSELF MAY HAVE CONTRIBUTED TO THE ACCIDENT BY DIRECTING    HOW THE PLOWING AND PILING OF SNOW WOULD BE MANAGED IN A MELTING    AND RE-FREEZING SCENARIO

 

a. K'or cleared the property of ice and performed salting several times on that date.

b. K'or service logs show employees returned the following morning at 5: A.M. and salted

      c. K'or inspection of the property at 7:00 A.M., found  lot and walkways to be free of snow and ice.    d. K'or  submitted P's testimony she saw no ice or snow lot or walkways when she arrived at work,  e. K'or submitted  meteorological evidence showing  no precipitation on the day of the accident.

 f. 2 K'or employees who inspected the property on the morning of the accident averred

       (i)  when they plowed snow they always did so in the areas specified by Owner in the contract,

       (ii)  they never encountered a snow melt/refreeze issue at the subject parking lot

       (iii) there was no snow or ice accumulation present the morning of the accident.