Lopez v. New York Life Insurance

90 A.D.3d 446, 934 N.Y.2d 136

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 2011
• Status: Published

Opinions

Plaintiff allegedly slipped in a large puddle of water that appeared to be flowing out from under a locked men’s room door in a building owned by NYL, managed by JLL, and for which Collins provided janatorial services. The evidence submitted by NYL, Collins and JLL was insufficient to establish as a matter of law that they did not have constructive notice of the hazard. In particular, they failed to provide evidence regarding the inspection procedures followed on the date of the accident or the duration and source of the hazard (see Castillo v New York City Tr. Auth., 69 AD3d 487 [2010]; Roy v City of New York, 65 AD3d 1030, 1031 [2009]).

Nor do the submissions of maintenance contractor Collins entitle it to summary judgment dismissing the claim against it on the ground that it owed no duty to plaintiff. A contractor may assume a duty of care toward third parties “where the contracting party, in failing to exercise reasonable care in the performance of his duties, ‘launche[s] a force or instrument of harm’ ” (Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002], quoting Mock Co. v Rensselaer Water Co., 247 NY 160, 168 [1928]). In this case, the hazard could have been created, for instance, through a failure to correct a drip into a stoppered sink or a failure to notice and report a leak. On a summary judgment motion, the burden is on the movant to demonstrate in the first instance entitlement to judgment as a matter of law (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). Under circumstances such as these, where plaintiff is unable to elaborate on how Collins “launched a force or instrument of harm” because defendants failed to explain how this undisputed hazardous condition occurred, the burden of the moving defendant cannot be satisfied by relying solely on the limited duty owed by a contractor, or by the assertion that its employees were not present in the building at the time of the accident. Collins’ submissions were insufficient to make a showing that it did not launch any force or instrument of harm, and its failure to do so precludes the dismissal of the claim against it on this motion.

NYL’s claims for common-law and contractual indemnification against JLL and Collins cannot be resolved summarily until a determination is made as to their negligence, if any (see e.g. Prenderville v International Serv. Sys., Inc., 10 AD3d 334, 338 [2004]; Gomez v National Ctr. for Disability Servs., 306 AD2d 103 [2003]). Similarly, JLL’s indemnification claims against NYL cannot be resolved at this juncture.

We have considered appellants’ remaining arguments and find them unavailing. Concur — Tom, J.E, Saxe, DeGrasse, Freedman and Román, JJ.