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FILED: NASSAU COUNTY CLERK 02/09/2023 10:13 PM INDEX NO. 604204/2014
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EXHIBIT A
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU - IAS/TRIAL PART 35
X
MICHAEL MESSINA,
Plaintiff Index #: 604204-14
Motion Sequence Nos.: 005,006,007
-against- Mot. Submitted: 10/16/18
Present: Hon. Steven M. Jaeger
MORTON VILLAGE REALTY INC. and
PHILLIPS INTERNATIONAL REALTY INC., XXX
Defendants.
X
MORTON VILLAGE REALTY INC. and
PHILLIPS INTERNATIONAL REALTY INC.,
Third-Party Plaintiffs,
-against-
MR. JOE'S PIZZERIA & RISTORANTE, RUAGO, LLC
d/b/a/ PIZZA DELIGHT, INC., AUTO, INC.,
GIUSEPPE FRANZELLA, JOSEPH LOGLISCI,
MICHAEL RUGGIERO, DIG ENTERPRISE, INC.
and PETE LAMARIANA,
Third-Party Defendants.
X
Papers submitted on the motion:
Notice of Motion, Affirmation & Exhibits (005) X
Affirmation in Partial Opposition (005) X
Reply Affirmation (005) X
Reply Memorandum of Law (005) X
Memorandum of Law (005) X
Notice of Cross Motion (006) X
Affirmation in Partial Opposition Cross Motion (006) X
Affirmation in Reply & in Opposition (006) X
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Notice of Cross Motion (007) X
Affirmation in Opposition (007) X
Reply Affirmation (007) X
Motion [Mot. Seq. 005] by defendants, Philips International Holding Corp. and Morton
Village Realty Co., Inc.. incorrectly sued herein as Morton Village Realty Inc. and Phillips
International Realty Inc., for an Order:
pursuant to CPLR 3211 and 3212, granting them summary judgment dismissal of the
plaintiffs complaint;
pursuant to CPLR 3126, precluding the plaintiff from introducing evidence on the
issues of liability and damages at trial due to his willful failure to provide material and necessary
discovery, and this dismissing the action in its entirety due to his inability to establish a prima
facie case;
pursuant to CPLR 3025, granting them leave to amend their third party complaint to
include a claim for breach of contract against the third party defendants; and,
pursuant to CPLR 3211 and 3212, granting them summary judgment on their third
party claims for breach of contract, indemnification and contribution against third party
defendants. The motion is granted in part and denied in part.
Cross motion [Mot. Seq. 006] by third party defendants, DIG Enterprise, Inc. and Peter
Lamariana s/h/a Pete Lamariana, for an Order, pursuant to CPLR 3212, granting them summary
judgment dismissal of the third party action as against them together with summary judgment
dismissal of any and all claims as asserted against them with prejudice, is denied as moot.
Cross motion [Mot. Seq. 007] by plaintiff, Michael Messina, for an Order, pursuant to
CPLR 3212, awarding him summary judgment "against the defendants" is denied.
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This is an action in negligence by plaintiff, Michael Messina ("Messina"), to recover for
personal injuries he allegedly sustained on January 9, 2014 at approximately 5:30 p.m., as a
result of a slip and fall on ice on the sidewalk located at 1048 Old Country Road, Plainview,
New York outside of the rear entrance to defendant, Mr. Joe's Pizzeria & Ristorante ("Mr.
Joe's").
Defendant Morton Village Realty Co., Inc ("Morton") is the owner of 1048 Old Country
Road, Plainview, New York. Defendant Philips International Holding Corp. ("Philips") is
Morton's managing agent for the property located at 1048 Old Country Road, Plainview, New
York. Raymond Sohmer ("Sohmer") was the property director (an employee of Philips) of the
subject property in January 2014. At his oral examination before trial, Sohmer testified that it
was his responsibility to manage the day to day operations of the Morton Village property
including making sure that the property was maintained properly, making sure that the contracts
were adhered to and making sure that no repairs were needed on a daily basis. Sohmer explained
that if he discovered something which needed maintenance, he would first determine if it was the
responsibility of the landlord or the tenant. If he determined that it was the landlord's
responsibility, he would resolve the issue; if, on the other hand, it was the tenant's responsibility,
he would address it with the tenant.
At his oral examination before trial, plaintiff testified that, on the date of his accident, he
was employed at Mr. Joe's Pizzeria as the manager. He stated that he worked all seven days of
the week (96). On the date of his accident, plaintiff arrived at the restaurant at approximately
10:00 a.m. At first, he parked in the front of the shopping center, but later that morning, he
moved his car to the rear of the restaurant. Critically, Messina testified that he did not see any
snow or ice on the sidewalk in the rear of the restaurant that morning (67-68). Indeed, Messina
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stated that although it had snowed "a couple of days" before the date of his accident, there was
no snow on either the parking lot or the sidewalk when he moved his car around to the ba:ck that
morning. He described the rear sidewalk as being concrete with a curb between it and the asphalt
parking lot.
According to the plaintiff, there were no complaints regarding the condition of the
sidewalk behind the restaurant prior to his accident. Plaintiff explained that on the date of his
accident, Mr. Joe's had five people working between 10:30 a.m. and 10:30 p.m. He stated that
his workers would take the trash out to a dumpster in the back of the restaurant two or three
times a day. He stated that none of his workers, including those that had taken the trash out, had
complained to him about the conditions behind the restaurant prior to his slip and fall.
At approximately 5:30 p.m., Messina walked out of the back door of Mr. Joe's and made
a left on the sidewalk to walk to his car. He testified as follows:
***
Q: How many steps did you make [sic] outside the store before your accident
happened?
A: Three.
Q: Did you step straight out and than [sic] turn to the left and then walked those
other two steps?
A: Yes.
Q: Was that all on the sidewalk?
A: Correct.
Q: When you made the first step out the door, did the surface of the sidewalk feel
slippery under your feet?
A: Yes. It was ice. It was shiny.
***
Q: Did you observe that it was shiny before you made the first step out?
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A: I walked, took the first step and made a left, I looked it was shiny and I walked.
That's it.
***
(Messina Tr., pp. 29-30)
Plaintiff testified that, on the date of his accident, it was not snowing but that it was cold.
He stated that the sidewalk was "shiny" when he left the restaurant but that when he saw the
"shiny" area, he did not know that it was ice (45). He walked on the shiny area and he fell (49-
51).
Based on these facts, plaintiff commenced this action against Morton and Philips in or
around August, 2014 asserting claims for negligence. In sum and substance, in his complaint and
three supplemental Bills of Particular,' plaintiff allpges that said defendants were negligent in
failing to maintain the premises and allowing an icy condition to develop on the rear sidewalk.
Notably, in his (original) Verified Bill of Particulars dated January 5, 2015, plaintiff
alleged, in pertinent part, that "said occurrence was due to the negligence, recklessness and
carelessness of defendants.. .in the ownership, operation, control and maintenance of said
premises and more particularly the rear parking lot surrounding area thereat in causing,
permitting and/or allowing the said area at the aforementioned location to be, become and
remain in a dangerous and hazardous slippery condition, constituting a trap, nuisance and
hazard; in allowing water from the roof to be deposited directly onto the walkway by aluminum
leaders, in failing to utilized [sic] a drywell, in failing to have the leaders drain under the
sidewalk into a drain grate in the parking lot, in discharging water directly onto the sidewalk; in
'Plaintiff also served a fourth supplemental bill of particulars, infra.
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allowing a [sic] icy and slippery [sic] to exist; in failing to repair the aforementioned dangerous
and defective condition;..." (Verified Bill of Particulars, January 5, 2015, 17).
The defendants in turn commenced a third party action against: Mr. Joe's Pizzeria &
Ristorante; Ruago LLC d/b/a Pizza Delight, Inc.; Anto, Inc.; Giuseppe Franzella; Joseph
Loglisci; Michael Ruggiero; DIG Enterprise, Inc.; and, Pete Lamariana.
As stated above, Morton was the owner of the subject premises and Philips was its
managing agent for the subject location. Morton entered into lease agreements as follows:
By Lease dated May 1, 1996, Morton Village Realty Co., Inc., as owner and
landlord, entered into lease agreement with Pizza Delight, Inc. [Pizza Delight,
Inc. is the d/b/a of defendant Ruago, LLC. Defendant Joseph Loglisci is the
president of Pizza Delight, Inc. Loglisci signed the Lease on behalf of Pizza
Delight, Inc.]
On May 1, 2004, Morton, as owner, entered into an Amendment of the May 1,
1996 lease with assignor, Pizza Delight, Inc., and tenant Anto, Inc.
On May 26, 2004, a sublease for the subject premises was entered into between
Pizza Delight, Inc. and tenant Anto, Inc.
On December 9, 2011, a Second Amendment to the May 1, 1996 Lease was
entered into between Morton (owner), Anto, Inc. (Assignor) and Ruago, LLC
(tenant). Defendant Michael Ruggiero signed the December 9, 2011 lease
(amendment) as a member of Ruago, LLC.
Ruago LLC was a tenant of the subject location at the time of the incident. Mr. Joe's
Pizzeria & Ristorante was owned by Ruago LLC on the date of plaintiffs accident.
Pursuant to the lease agreement, the tenant of Mr. Joe's space was responsible for the
maintenance of the abutting sidewalks as each tenant was responsible to keep their own store
sidewalk free of debris, garbage accumulation, and snow or ice. This tenant responsibility
included maintaining the sidewalks behind the stores with respect to snow and ice.
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In the winter of 2013-2014, Raymond Sohmer, the property director of Philips, on behalf
of Morton and Philips, entered into a contract with third party defendant, DIG Enterprise, Inc.
("DIG") for snow removal at Morton Village. Third party defendant, Pete Lamariana, signed the
snow removal contract on behalf of DIG.
Sohmer testified that, ordinarily, as property director, he visited the Morton Village
Property once or twice a week; however, if there was a snow storm, he would visit the property
two or three times during the event and more frequently to make sure that the snow had been
cleared. Sohmer testified that between January 3, 2014 and January 9, 2014, he visited the back
of the stores and restaurants to check for snow removal and access for vehicles and for people
leaving the stores. Sohmer explained that with respect to ice treatment, DIG was responsible for
placing sand and salt and melting agents in the common areas which he specified consisted of
parking lots, front and back and drive lanes in and out of the shopping center. Sohmer expressly
stated that DIG was not responsible for addressing any ice accumulation on the sidewalks
(Sohmer Tr., p. 62) — except for the entrance to a building on the west side of the shopping
center (66) and any vacant storefronts for which the landlord retained the responsibility to
remove snow and ice (71-72). Sohmer testified that at the time of plaintiffs slip and fall, there
were two vacancies at the Morton Village Shopping Center —neither of which abutted Mr. Joe's
Pizzeria (71-74). Sohmer expressly stated that sidewalks were not considered common areas
(108).
Peter Lamariana is the President of DIG. At his oral examination before trial, Lamariana
explained that, in the winter of 2014, DIG performed snow and ice removal at the Morton
Village property in accordance with a contract. Specifically, he stated that DIG removed snow
and ice from the parking areas in front and rear of the shopping center commencing "pretty
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much as it started to snow." Lamariana explained that DIG left a pay loader with a plow on it at
the Morton Village property for this purpose. He stated that, most of the time, he would operate
the pay loader himself and plow the parking lots, entrances to and from the parking lots and the
driving lanes of Morton Village. Lamariana would also drive a sanding truck and apply a
sand/salt mixture to the entire parking lot after he plowed the snow. He stated that he would
plow the snow to the rear of the property in the far west end of the property. Lamariana added
that DIG would also remove snow and ice from sidewalks in front of vacant stores using a snow
blower, and apply salt to those sidewalks but only if it was necessary. According to Lamariana,
at no time that he was on the property plowing the snow was he ever asked by a tenant to remove
snow from a sidewalk.
Also according to Lamariana, neither Philips nor Morton nor any tenant ever complained
to DIG about the work DIG performed removing snow from the property.
Lamariana explained that for two or three days after a snowstorm, typically at night,
Lamariana visited the property to make sure everything was "in good shape." He stated that if he
saw any ice or snow where it should not have been, he would ensure its removal.
In bringing their third party suit against DIG and Lamariana, defendants/third party
plaintiffs Morton and Philips claim that, pursuant to their snow removal contract, DIG and
Lamariana had a duty to maintain the subject premises "in safe condition in snow and ice
removal"; that should Morton and/or Philips be found liable to the plaintiff in this litigation, they
are entitled to indemnification and contribution from DIG and Lamariana; and that plaintiffs
damages were caused solely by the negligence of DIG and Lamariana.
Based upon the papers submitted to this Court herein, it remains unclear to this Court as
to who Giuseppe Franzella is and what his relationship is to this litigation. In any event, it is
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undisputed that pursuant to a Stipulation of Discontinuance dated March 25, 2016, the parties to
this litigation (in both the primary action and the third party action) have discontinued their
claims as against third party defendants Anto, Inc. and Giuseppe Franzella.
Critical to the determination of the motions at hand, this Court notes that the plaintiff has
served three sets of Bills of Particular in this action with the third Bill of Particulars asserting
new injuries. On April 18, 2018, plaintiff filed a Note of Issue and Certificate of Readiness
placing this matter on the Trial Calendar. On May 7, 2018 and May 21, 2018, defendants Morton
and Philips and third party defendants DIG Enterprise, Inc. and Pete Lamariana, respectively,
filed motions to vacate the Note of Issue and extend their time to file motions for summary
judgment. Plaintiff opposed the defendants' motions. By Short Form Order dated August 3, 2018
(entered August 7, 2018), this Court (Peck, J.) denied both motions as moot determining that the
outstanding discovery had been provided but that the "defendants would be prejudiced if their
time to file summary judgment was not extended in view of the delay in receiving the discovery
from the plaintiff" Accordingly this Court extended the time to file summary judgment motions
to sixty days from the date of the Order.
On his instant cross motion, plaintiff, Michael Messina, seeks an Order, pursuant to
CPLR 3212, awarding him summary judgment "against the defendants". In so moving, plaintiff
advances his theory of the case as follows: one week before his slip and fall accident, a major
snow storm caused an accumulation of 10-10.5 inches of snow which was followed by a
substantial rise in the temperature to higher than 50 degrees Fahrenheit which caused the snow to
melt. This was again followed by the temperatures dropping back into the single digits causing a
"flash freeze." At that point, temperatures did not rise above freezing and no precipitation fell for
three days when he slipped and fell. Plaintiff claims that two aluminum downspouts led from the
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gutters on the roof of the premises to the back of the sidewalk which was pitched. As the snow
from the storm melted, it dripped down the downspout, onto the sidewalk, and then down the
sidewalk towards the back door of Mr. Joe's Pizzeria, where it refroze. Plaintiff claims, in
support of his cross motion, that because Morton, as the owner of the subject premises, and
Philips, as the property manager in charge of the property's maintenance, created the dangerous
conditions that he slipped on — by installing and maintaining structurally defective downspouts
which discharged directly onto the sidewalk and which violated the Property Maintenance Code
— he is entitled to summary judgment as a matter of law (Motion, ¶114-10). Specifically, plaintiff,
through his expert engineer, Anthony Mellusi, asserts that the downspouts attached to the
exterior of the building in the vicinity of Mr. Joe's Pizzeria are in violation of the Property
Maintenance Code §§ 302.2 and 304.7.
Notably, at no point in his complaint or his Bill of Particulars or three Supplemental Bills
of Particular, does the plaintiff assert the foregoing violations of the Property Maintenance Code.
That is, neither plaintiffs complaint nor in any of his original or three Supplemental Bills of
Particular served by the plaintiff in this action include a claim of any violation of any statute,
regulation or ordinance, let alone the two sections which are specifically relied upon by the
plaintiff in his cross motion. Yet, in support of his cross motion, plaintiff submits that he served
his fourth Supplemental Bill of Particulars dated February 14, 2018 in which he specifically
alleged that said defendants violated the Property Maintenance Code §§ 302.2 and 304.7.
The law is clear. A bill of particulars is designed to amplify pleadings, limit proof and
prevent unfair surprise at trial (Harmon v. Peats Co., 243 NY 473 [1926]; Castleton v. Broadway
Mall Props., Inc., 41 AD3d 410 [2' Dept. 2007]). Pursuant to CPLR 3042(b): "In any action or
proceeding in a court in which a note of issue is required to be filed, a party may amend the bill
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of particulars once as of course prior to the filing of a note of issue" (Emphasis Added).
However, CPLR 3043(b) allows tile plaintiff in a personal injury case to serve a supplemental
bill of particulars, also as a matter of right, but only "with respect to claims of continuing special
damages and disabilities." Thus, while the supplemental Bill of Particulars permits the plaintiff
to expand on the extent of the injuries and damages (Tate v. Colabello, 58 NY2d 84 [1983]), the
law prohibits it from being used to add a new cause of action, a new theory, or to assert a new
injury (CPLR 3043[b]; Barrera v. City of New York, 265 AD2d 516 [2nd Dept. 1999]).
Given these guidelines, this Court finds that, contrary to the plaintiffs contention, the
plaintiff is not entitled to assert and rely upon the specific statutory code violations of the
Property Maintenance Code as advanced in his fourth supplemental bill of particulars. It is plain
that such claims and allegations advance new statutory causes of action. These alleged violations
present new claims (statutory/code violations) that were never raised in the complaint or in any
of the previous Bills of Particular. For instance, in his original verified Bill of Particulars,
plaintiff claimed: "[S]tatutes are not required to be specified in a bill of particulars unless they
are raised in the complaint. No such [statutory or code] violations are claimed in the plaintiff's
complaint" (January 5, 2015 Bill of Particulars, 114) and in his "First Supplemental" Bill of
Particulars, plaintiff reiterated "Statutes are not required to be specified in a bill of particulars
unless they are raised in the complaint. No such violations are claimed in the plaintiffs
complaint" (July 9, 2015 Bill of Particulars, 17). Accordingly, this Court finds that any
allegation in the fourth Bill of Particulars as to the specific provisions of the Property
Maintenance Code present a new theory that by the plaintiff's own admission was not raised
either in the Complaint or for that matter in any previous iteration of his Bills of Particular.
Accordingly, this Court will not permit the plaintiff herein to rely upon said specific statutory
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at 518;
code violations at this juncture (CPLR 3043[b]; Barrera v. City of New York, supra
148 AD3d 873, 877
Romanello v. Jason, 303 AD2d 670 [2nd Dept. 2003]; Mackauer v. Parikh,
294 AD2d 455 [2' Dept. 2002]).
[rd Dept. 2017]; Bartkus v. New York Methodist Hosp.,
Therefore, in determining the motions at hand, this Court will limit the plaintiffs claims
as advanced in his complaint, Bill of Particulars and three Supplemental Bills of Particular — i.e.,
his common law ordinary negligence claims relating to his slip and fall on ice on the sidewalk.
Thus, while the property code violations will not specifically be considered herewith, plaintiffs
allegation in his original bill of particulars, as relating to among other things, the downspouts
and gutters will be addressed.
To that extent, this Court notes that at the heart of the instant motions by defendants
Morton and Philips and the cross motion by plaintiff Michael Messina is the issue of the
downspouts and gutters. Indeed, in his cross motion for summary judgment against the
defendants, plaintiffs entire theory of the case rests upon his claim that the defendants caused
and created the icy condition by allowing the downspouts to discharge directly onto the pitched
sidewalk — which also violated the Property Maintenance Code §§302.2 and 304.7. In support of
his cross motion, plaintiff relies upon, inter alia, the expert affidavits of George Wright,
Certified Consulting Meteorologist and Anthony Mellusi, P.E., a Professional Engineer.
In pertinent part, Mr. Wright, opined as follows:
***
16. In my opinion, based upon a reasonable degree of meteorological certainty, the
Plaintiff slipped and fell upon ice formed by the melting snow and the rain that
ponded on the subject walkway on January 6, 2014 that subsequently froze into
ice after 8:30 p.m. on this day. Allowing for three (3) hours for all of the
meltwater and rainwater to freeze into solid ice, the ice Plaintiff slipped and fell
upon formed by 11:30 p.m. on January 6, 2014, was present on the walkway for
more than 66 hours prior to his incident and was therefore a long-standing
condition.
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***
(Motion, Ex. S)
Notably, the expert meteorologist also took into account the report of plaintiff's
engineering expert, Anthony Mellusi, a "Merchant Marine Licensed Engineer" who opines, in
pertinent part, as follows:
***
It is my opinion to a reasonable degree of engineering certainty that the downspouts
leading directly onto the sidewalk constitute a nuisance, trap and slipping hazard
From my inspection of the subject premises, I found that the building's roof drain
systems discharged directly onto the back sidewalk. This sidewalk is utilized by
pedestrian traffic, as shown by Mr. Messina's slipping and falling on it. The slope of the
sidewalk is pitched in such a manner that roof water discharging from the downspout
onto the sidewalk will flow in a direction towards the area of the exit door, which Mr.
Messina had walked out of.***
Property Maintenance Code §302***
Property Maintenance Code §304***
It is my opinion to a reasonable degree of engineering certainty that the downspouts
leading directly on the sidewalk that Mr. Messina slipped and fell on are a direct
violation of Property Maintenance Code §§302.2 and 304.7. It is my opinion to a
reasonable degree of engineering certainty that these violations constituted a nuisance,
trap and a slipping hazard for all users of this sidewalk.
It is my opinion to a reasonable degree of engineering certainty that the water
discharging from the roof onto the sidewalk is ponding on the sidewalk and freezing
when temperatures reach freezing point. In this case, water from the roof discharged from
the downspouts on January 5, 2014 when the temperature rose to unseasonably mild
temperatures. It is my opinion to a reasonable degree of engineering certainty that this
water ponded on the subject sidewalk where Mr. Messina slipped and fell. The ponded
water then froze on January 6, 2014 during a "flash freeze." It is my opinion to a
reasonable degree of engineering certainty that this ice was the ice that Mr. Messina
slipped and fell on.
It is my opinion to a reasonable degree of engineering certainty that the water, which
ponded and froze into the ice that Mr. Messina slipped and fell on would not have been
present if not for the downspouts violating Property Maintenance Code §§302.2 and
304.7. It is therefore my opinion to a reasonable degree of engineering certainty that Mr.
Messina's slip and fall was the result of the negligence of the building owners and
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management for failing to properly maintain and did discharge water from the roofs
through a property storm drain system.
***
(Motion, Ex. T).
Again, having determined that the plaintiffs claims of violations of the Property Code
were improperly advanced in his "fourth" supplemental bill of particulars, supra, this Court will
not consider any discussion of said code provisions in any expert affidavit (or other proof and
submissions) including the affidavit of Mr. Mellusi.
Moreover, in support of their motion for summary judgment dismissal of the plaintiffs
complaint, defendants Morton and Philips submit, inter alia, that plaintiffs claims must be
dismissed in their entirety because, among other things, Morton was an out of possession
landlord that contractually delegated all snow or ice cleaning activities regarding the subject
sidewalk to its property manager, the defendants did not acquire either actual or constructive
notice of the allegedly icy condition upon which the plaintiff claims he slipped or of any other
allegedly defective condition as a matter of law. Philips also maintains that, as the managing
agent of the landlord, it did not owe a legal duty to the plaintiff
This Court begins by addressing the defendant Philips' claim that as the managing agent
of the landlord owner, it did not owe a legal duty to the plaintiff The law on this issue is well
settled. In its seminal 2002 decision of Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136,
the Court of Appeals, held that while, ordinarily, "a contractual obligation, standing alone, will
generally not give rise to tort liability in favor of a third party.. .we have recognized that under
some circumstances, a party who enters into a contract thereby assumes a duty of care to certain
persons outside the contract" (Id. at138-139 [citations omitted]). The Court identified three
situations and accordingly carved out three exceptions to the general rule that no tort liability in
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favor of a third party will arise — i.e., there are only "three situations in which a party who enters
into a contract to render services may be said to have assumed a duty of care—and thus be
potentially liable in tort—to third persons: (1) where the contracting party, in failing to exercise
reasonable care in the performance of his duties, launche[s] a force or instrument of harm'
***(2) where the plaintiff detrimentally relies on the continued performance of the contracting
party's duties *** and (3) where the contracting party has entirely displaced the other party's
duty to maintain the premises safely*** " (Id. at 140 [citations omitted]).
Based upon the papers submitted herewith, it is clear that by admitting to step into the
shoes of the landlord/owner, the defendant Philips did owe a duty of care to the plaintiff herein.
Indeed, based upon his own testimony, Raymond Sohmer, the property director of Philips
admitted, among other things that it was his responsibility to "manage the day to day operations"
of the Morton Village property including identifying and making any necessary repairs.
Specifically, Sohmer explained that if he discovered something which needed maintenance, he
would first determine if it was the responsibility of the landlord or the tenant and that if he
determined that it was the landlord's responsibility, he would resolve the issue. (If, on the other
hand, it was the tenant's responsibility, he would address it with the tenant.) Given the
foregoing, this Court finds that Philips obligations were so comprehensive — as property manager
to the property owned by Morton, a contracting party — that it owed "a duty to "noncontracting
individuals reasonably within the zone and contemplation of the intended safety services,"
including the plaintiff (Espinal v Melville Snow Contrs., supra at 140).
Moreover, a real property owner or a party in possession or control of real property will
be held liable for injuries sustained in a slip-and-fall accident involving snow and ice on its
property only when it created the alleged dangerous condition or had actual or constructive
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Flores v BA.1 Holding Corp., 94
notice of it (Denardo v Ziatyk, 95 AD3d 929 [2" Dept. 2012];
87 AD3d 1106 [2"
AD3d 945 [2" Dept. 2012]; Cantwell v Fox Hill Community Assn., Inc.,
62 AD3d 823 [2" Dept. 2009]). Thus, a
Dept. 2011]; Crosthwaite v Acadia Realty Trust,
defendant who moves for summary judgment in a slip-and-fall case has the initial burden of
making a prima facie showing that it neither created the hazardous condition nor had actual or
constructive notice of its existence for a sufficient length of time to discover and remedy it
(Santoliquid° v Roman Catholic Church of Holy Name of Jesus, 37 AD3d 815, 815-816 [2"
Dept. 2007]).
This Court finds that, in this case, the defendants Morton and Philips have met this
burden by submitting evidence sufficient to demonstrate that they did not create or have any
notice — either actual or constructive — of the allegedly defective gutters and downspouts that
purportedly created the icy condition upon which the plaintiff fell (Cantwell v Fox Hill
Community Assn., Inc., supra; Robinson v Trade Link Am., 39 AD3d 616 [2" Dept. 2007];
Murphy v 136 N Blvd. Assoc., 304 AD2d 540 [2' Dept. 2003]). The defendants have also
established that they did not have notice of the icy condition itself that allegedly caused the
plaintiff to fall.
Specifically, based upon the papers submitted herewith, this Court finds that on this
record, there is no evidence that either defendant Morton or Philips installed the gutters at the
location or received any complaints regarding same. Philips' property director, Raymond
Sohmer, testified that ever since he has managed the subject property in 2005 or 2006, he did not
receive any complaints regarding the gutters nor he did know who installed them. Furthermore,
the plaintiff himself testified that, despite the fact that he worked at Mr. Joe's seven days a week
(as a manager), he never complained about water discharge from the gutters and/or leaders.
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Indeed, Michael Ruggiero, the owner of Mr. Joe's at the time of plaintiff's accident, also
testified that he did not notice water running from the leaders to the ground, and that, he too
never complained about any water discharge from the leaders, gutters or about any snow or ice
conditions on the rear sidewalk of the subject premises.
The defendants have also demonstrated that they did not have any constructive notice of
the allegedly defective gutters that purportedly created the icy condition upon which plaintiff
ultimately slipped and fell. Moreover, even assuming that the defendants could be so charged
with knowing that the gutters created icy conditions, the law requires more than a "general
awareness" of the allegedly defective condition to legally impute constructive notice of the
particular dangerous condition (Cruz v Rampersad, 110 AD3d 669 [2nd Dept. 2013]; Kaplan v
d Dept.
DePetro, 51 AD3d 730 [2nd Dept. 2008]; Edwards v DeMatteis Corp., 306 AD2d 309 [2'
2003]). To that extent, this Court finds that the plaintiff has failed to establish that the defendants
herein had more than a "general awareness" of any such defective condition, if any at all — i.e.,
gutters that created the specific icy conditions.
Thus, the evidence herewith establishes that none of the parties — including the plaintiff—
were aware of any prior complaints regarding the gutters or icy conditions at the incident
location.
Notably, in opposition, and in
Preview
FILED: NASSAU COUNTY CLERK 02/09/2023 10:13 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 325 RECEIVED NYSCEF: 02/09/2023 EXHIBIT A FILED: NASSAU COUNTY CLERK 02/09/2023 12/03/2018 10:13 09:10 PM AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 325 227 RECEIVED NYSCEF: 02/09/2023 12/03/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU - IAS/TRIAL PART 35 X MICHAEL MESSINA, Plaintiff Index #: 604204-14 Motion Sequence Nos.: 005,006,007 -against- Mot. Submitted: 10/16/18 Present: Hon. Steven M. Jaeger MORTON VILLAGE REALTY INC. and PHILLIPS INTERNATIONAL REALTY INC., XXX Defendants. X MORTON VILLAGE REALTY INC. and PHILLIPS INTERNATIONAL REALTY INC., Third-Party Plaintiffs, -against- MR. JOE'S PIZZERIA & RISTORANTE, RUAGO, LLC d/b/a/ PIZZA DELIGHT, INC., AUTO, INC., GIUSEPPE FRANZELLA, JOSEPH LOGLISCI, MICHAEL RUGGIERO, DIG ENTERPRISE, INC. and PETE LAMARIANA, Third-Party Defendants. X Papers submitted on the motion: Notice of Motion, Affirmation & Exhibits (005) X Affirmation in Partial Opposition (005) X Reply Affirmation (005) X Reply Memorandum of Law (005) X Memorandum of Law (005) X Notice of Cross Motion (006) X Affirmation in Partial Opposition Cross Motion (006) X Affirmation in Reply & in Opposition (006) X 1 1 of 19 FILED: NASSAU COUNTY CLERK 02/09/2023 12/03/2018 10:13 09:10 PM AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 325 227 RECEIVED NYSCEF: 02/09/2023 12/03/2018 Notice of Cross Motion (007) X Affirmation in Opposition (007) X Reply Affirmation (007) X Motion [Mot. Seq. 005] by defendants, Philips International Holding Corp. and Morton Village Realty Co., Inc.. incorrectly sued herein as Morton Village Realty Inc. and Phillips International Realty Inc., for an Order: pursuant to CPLR 3211 and 3212, granting them summary judgment dismissal of the plaintiffs complaint; pursuant to CPLR 3126, precluding the plaintiff from introducing evidence on the issues of liability and damages at trial due to his willful failure to provide material and necessary discovery, and this dismissing the action in its entirety due to his inability to establish a prima facie case; pursuant to CPLR 3025, granting them leave to amend their third party complaint to include a claim for breach of contract against the third party defendants; and, pursuant to CPLR 3211 and 3212, granting them summary judgment on their third party claims for breach of contract, indemnification and contribution against third party defendants. The motion is granted in part and denied in part. Cross motion [Mot. Seq. 006] by third party defendants, DIG Enterprise, Inc. and Peter Lamariana s/h/a Pete Lamariana, for an Order, pursuant to CPLR 3212, granting them summary judgment dismissal of the third party action as against them together with summary judgment dismissal of any and all claims as asserted against them with prejudice, is denied as moot. Cross motion [Mot. Seq. 007] by plaintiff, Michael Messina, for an Order, pursuant to CPLR 3212, awarding him summary judgment "against the defendants" is denied. 2 2 of 19 FILED: NASSAU COUNTY CLERK 02/09/2023 12/03/2018 10:13 09:10 PM AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 325 227 RECEIVED NYSCEF: 02/09/2023 12/03/2018 This is an action in negligence by plaintiff, Michael Messina ("Messina"), to recover for personal injuries he allegedly sustained on January 9, 2014 at approximately 5:30 p.m., as a result of a slip and fall on ice on the sidewalk located at 1048 Old Country Road, Plainview, New York outside of the rear entrance to defendant, Mr. Joe's Pizzeria & Ristorante ("Mr. Joe's"). Defendant Morton Village Realty Co., Inc ("Morton") is the owner of 1048 Old Country Road, Plainview, New York. Defendant Philips International Holding Corp. ("Philips") is Morton's managing agent for the property located at 1048 Old Country Road, Plainview, New York. Raymond Sohmer ("Sohmer") was the property director (an employee of Philips) of the subject property in January 2014. At his oral examination before trial, Sohmer testified that it was his responsibility to manage the day to day operations of the Morton Village property including making sure that the property was maintained properly, making sure that the contracts were adhered to and making sure that no repairs were needed on a daily basis. Sohmer explained that if he discovered something which needed maintenance, he would first determine if it was the responsibility of the landlord or the tenant. If he determined that it was the landlord's responsibility, he would resolve the issue; if, on the other hand, it was the tenant's responsibility, he would address it with the tenant. At his oral examination before trial, plaintiff testified that, on the date of his accident, he was employed at Mr. Joe's Pizzeria as the manager. He stated that he worked all seven days of the week (96). On the date of his accident, plaintiff arrived at the restaurant at approximately 10:00 a.m. At first, he parked in the front of the shopping center, but later that morning, he moved his car to the rear of the restaurant. Critically, Messina testified that he did not see any snow or ice on the sidewalk in the rear of the restaurant that morning (67-68). Indeed, Messina 3 3 of 19 FILED: NASSAU COUNTY CLERK 02/09/2023 12/03/2018 10:13 09:10 PM AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 325 227 RECEIVED NYSCEF: 02/09/2023 12/03/2018 stated that although it had snowed "a couple of days" before the date of his accident, there was no snow on either the parking lot or the sidewalk when he moved his car around to the ba:ck that morning. He described the rear sidewalk as being concrete with a curb between it and the asphalt parking lot. According to the plaintiff, there were no complaints regarding the condition of the sidewalk behind the restaurant prior to his accident. Plaintiff explained that on the date of his accident, Mr. Joe's had five people working between 10:30 a.m. and 10:30 p.m. He stated that his workers would take the trash out to a dumpster in the back of the restaurant two or three times a day. He stated that none of his workers, including those that had taken the trash out, had complained to him about the conditions behind the restaurant prior to his slip and fall. At approximately 5:30 p.m., Messina walked out of the back door of Mr. Joe's and made a left on the sidewalk to walk to his car. He testified as follows: *** Q: How many steps did you make [sic] outside the store before your accident happened? A: Three. Q: Did you step straight out and than [sic] turn to the left and then walked those other two steps? A: Yes. Q: Was that all on the sidewalk? A: Correct. Q: When you made the first step out the door, did the surface of the sidewalk feel slippery under your feet? A: Yes. It was ice. It was shiny. *** Q: Did you observe that it was shiny before you made the first step out? 4 4 of 19 FILED: NASSAU COUNTY CLERK 02/09/2023 12/03/2018 10:13 09:10 PM AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 325 227 RECEIVED NYSCEF: 02/09/2023 12/03/2018 A: I walked, took the first step and made a left, I looked it was shiny and I walked. That's it. *** (Messina Tr., pp. 29-30) Plaintiff testified that, on the date of his accident, it was not snowing but that it was cold. He stated that the sidewalk was "shiny" when he left the restaurant but that when he saw the "shiny" area, he did not know that it was ice (45). He walked on the shiny area and he fell (49- 51). Based on these facts, plaintiff commenced this action against Morton and Philips in or around August, 2014 asserting claims for negligence. In sum and substance, in his complaint and three supplemental Bills of Particular,' plaintiff allpges that said defendants were negligent in failing to maintain the premises and allowing an icy condition to develop on the rear sidewalk. Notably, in his (original) Verified Bill of Particulars dated January 5, 2015, plaintiff alleged, in pertinent part, that "said occurrence was due to the negligence, recklessness and carelessness of defendants.. .in the ownership, operation, control and maintenance of said premises and more particularly the rear parking lot surrounding area thereat in causing, permitting and/or allowing the said area at the aforementioned location to be, become and remain in a dangerous and hazardous slippery condition, constituting a trap, nuisance and hazard; in allowing water from the roof to be deposited directly onto the walkway by aluminum leaders, in failing to utilized [sic] a drywell, in failing to have the leaders drain under the sidewalk into a drain grate in the parking lot, in discharging water directly onto the sidewalk; in 'Plaintiff also served a fourth supplemental bill of particulars, infra. 5 5 of 19 FILED: NASSAU COUNTY CLERK 02/09/2023 12/03/2018 10:13 09:10 PM AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 325 227 RECEIVED NYSCEF: 02/09/2023 12/03/2018 allowing a [sic] icy and slippery [sic] to exist; in failing to repair the aforementioned dangerous and defective condition;..." (Verified Bill of Particulars, January 5, 2015, 17). The defendants in turn commenced a third party action against: Mr. Joe's Pizzeria & Ristorante; Ruago LLC d/b/a Pizza Delight, Inc.; Anto, Inc.; Giuseppe Franzella; Joseph Loglisci; Michael Ruggiero; DIG Enterprise, Inc.; and, Pete Lamariana. As stated above, Morton was the owner of the subject premises and Philips was its managing agent for the subject location. Morton entered into lease agreements as follows: By Lease dated May 1, 1996, Morton Village Realty Co., Inc., as owner and landlord, entered into lease agreement with Pizza Delight, Inc. [Pizza Delight, Inc. is the d/b/a of defendant Ruago, LLC. Defendant Joseph Loglisci is the president of Pizza Delight, Inc. Loglisci signed the Lease on behalf of Pizza Delight, Inc.] On May 1, 2004, Morton, as owner, entered into an Amendment of the May 1, 1996 lease with assignor, Pizza Delight, Inc., and tenant Anto, Inc. On May 26, 2004, a sublease for the subject premises was entered into between Pizza Delight, Inc. and tenant Anto, Inc. On December 9, 2011, a Second Amendment to the May 1, 1996 Lease was entered into between Morton (owner), Anto, Inc. (Assignor) and Ruago, LLC (tenant). Defendant Michael Ruggiero signed the December 9, 2011 lease (amendment) as a member of Ruago, LLC. Ruago LLC was a tenant of the subject location at the time of the incident. Mr. Joe's Pizzeria & Ristorante was owned by Ruago LLC on the date of plaintiffs accident. Pursuant to the lease agreement, the tenant of Mr. Joe's space was responsible for the maintenance of the abutting sidewalks as each tenant was responsible to keep their own store sidewalk free of debris, garbage accumulation, and snow or ice. This tenant responsibility included maintaining the sidewalks behind the stores with respect to snow and ice. 6 6 of 19 FILED: NASSAU COUNTY CLERK 02/09/2023 12/03/2018 10:13 09:10 PM AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 325 227 RECEIVED NYSCEF: 02/09/2023 12/03/2018 In the winter of 2013-2014, Raymond Sohmer, the property director of Philips, on behalf of Morton and Philips, entered into a contract with third party defendant, DIG Enterprise, Inc. ("DIG") for snow removal at Morton Village. Third party defendant, Pete Lamariana, signed the snow removal contract on behalf of DIG. Sohmer testified that, ordinarily, as property director, he visited the Morton Village Property once or twice a week; however, if there was a snow storm, he would visit the property two or three times during the event and more frequently to make sure that the snow had been cleared. Sohmer testified that between January 3, 2014 and January 9, 2014, he visited the back of the stores and restaurants to check for snow removal and access for vehicles and for people leaving the stores. Sohmer explained that with respect to ice treatment, DIG was responsible for placing sand and salt and melting agents in the common areas which he specified consisted of parking lots, front and back and drive lanes in and out of the shopping center. Sohmer expressly stated that DIG was not responsible for addressing any ice accumulation on the sidewalks (Sohmer Tr., p. 62) — except for the entrance to a building on the west side of the shopping center (66) and any vacant storefronts for which the landlord retained the responsibility to remove snow and ice (71-72). Sohmer testified that at the time of plaintiffs slip and fall, there were two vacancies at the Morton Village Shopping Center —neither of which abutted Mr. Joe's Pizzeria (71-74). Sohmer expressly stated that sidewalks were not considered common areas (108). Peter Lamariana is the President of DIG. At his oral examination before trial, Lamariana explained that, in the winter of 2014, DIG performed snow and ice removal at the Morton Village property in accordance with a contract. Specifically, he stated that DIG removed snow and ice from the parking areas in front and rear of the shopping center commencing "pretty 7 7 of 19 FILED: NASSAU COUNTY CLERK 02/09/2023 12/03/2018 10:13 09:10 PM AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 325 227 RECEIVED NYSCEF: 02/09/2023 12/03/2018 much as it started to snow." Lamariana explained that DIG left a pay loader with a plow on it at the Morton Village property for this purpose. He stated that, most of the time, he would operate the pay loader himself and plow the parking lots, entrances to and from the parking lots and the driving lanes of Morton Village. Lamariana would also drive a sanding truck and apply a sand/salt mixture to the entire parking lot after he plowed the snow. He stated that he would plow the snow to the rear of the property in the far west end of the property. Lamariana added that DIG would also remove snow and ice from sidewalks in front of vacant stores using a snow blower, and apply salt to those sidewalks but only if it was necessary. According to Lamariana, at no time that he was on the property plowing the snow was he ever asked by a tenant to remove snow from a sidewalk. Also according to Lamariana, neither Philips nor Morton nor any tenant ever complained to DIG about the work DIG performed removing snow from the property. Lamariana explained that for two or three days after a snowstorm, typically at night, Lamariana visited the property to make sure everything was "in good shape." He stated that if he saw any ice or snow where it should not have been, he would ensure its removal. In bringing their third party suit against DIG and Lamariana, defendants/third party plaintiffs Morton and Philips claim that, pursuant to their snow removal contract, DIG and Lamariana had a duty to maintain the subject premises "in safe condition in snow and ice removal"; that should Morton and/or Philips be found liable to the plaintiff in this litigation, they are entitled to indemnification and contribution from DIG and Lamariana; and that plaintiffs damages were caused solely by the negligence of DIG and Lamariana. Based upon the papers submitted to this Court herein, it remains unclear to this Court as to who Giuseppe Franzella is and what his relationship is to this litigation. In any event, it is 8 8 of 19 FILED: NASSAU COUNTY CLERK 02/09/2023 12/03/2018 10:13 09:10 PM AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 325 227 RECEIVED NYSCEF: 02/09/2023 12/03/2018 undisputed that pursuant to a Stipulation of Discontinuance dated March 25, 2016, the parties to this litigation (in both the primary action and the third party action) have discontinued their claims as against third party defendants Anto, Inc. and Giuseppe Franzella. Critical to the determination of the motions at hand, this Court notes that the plaintiff has served three sets of Bills of Particular in this action with the third Bill of Particulars asserting new injuries. On April 18, 2018, plaintiff filed a Note of Issue and Certificate of Readiness placing this matter on the Trial Calendar. On May 7, 2018 and May 21, 2018, defendants Morton and Philips and third party defendants DIG Enterprise, Inc. and Pete Lamariana, respectively, filed motions to vacate the Note of Issue and extend their time to file motions for summary judgment. Plaintiff opposed the defendants' motions. By Short Form Order dated August 3, 2018 (entered August 7, 2018), this Court (Peck, J.) denied both motions as moot determining that the outstanding discovery had been provided but that the "defendants would be prejudiced if their time to file summary judgment was not extended in view of the delay in receiving the discovery from the plaintiff" Accordingly this Court extended the time to file summary judgment motions to sixty days from the date of the Order. On his instant cross motion, plaintiff, Michael Messina, seeks an Order, pursuant to CPLR 3212, awarding him summary judgment "against the defendants". In so moving, plaintiff advances his theory of the case as follows: one week before his slip and fall accident, a major snow storm caused an accumulation of 10-10.5 inches of snow which was followed by a substantial rise in the temperature to higher than 50 degrees Fahrenheit which caused the snow to melt. This was again followed by the temperatures dropping back into the single digits causing a "flash freeze." At that point, temperatures did not rise above freezing and no precipitation fell for three days when he slipped and fell. Plaintiff claims that two aluminum downspouts led from the 9 9 of 19 FILED: NASSAU COUNTY CLERK 02/09/2023 12/03/2018 10:13 09:10 PM AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 325 227 RECEIVED NYSCEF: 02/09/2023 12/03/2018 gutters on the roof of the premises to the back of the sidewalk which was pitched. As the snow from the storm melted, it dripped down the downspout, onto the sidewalk, and then down the sidewalk towards the back door of Mr. Joe's Pizzeria, where it refroze. Plaintiff claims, in support of his cross motion, that because Morton, as the owner of the subject premises, and Philips, as the property manager in charge of the property's maintenance, created the dangerous conditions that he slipped on — by installing and maintaining structurally defective downspouts which discharged directly onto the sidewalk and which violated the Property Maintenance Code — he is entitled to summary judgment as a matter of law (Motion, ¶114-10). Specifically, plaintiff, through his expert engineer, Anthony Mellusi, asserts that the downspouts attached to the exterior of the building in the vicinity of Mr. Joe's Pizzeria are in violation of the Property Maintenance Code §§ 302.2 and 304.7. Notably, at no point in his complaint or his Bill of Particulars or three Supplemental Bills of Particular, does the plaintiff assert the foregoing violations of the Property Maintenance Code. That is, neither plaintiffs complaint nor in any of his original or three Supplemental Bills of Particular served by the plaintiff in this action include a claim of any violation of any statute, regulation or ordinance, let alone the two sections which are specifically relied upon by the plaintiff in his cross motion. Yet, in support of his cross motion, plaintiff submits that he served his fourth Supplemental Bill of Particulars dated February 14, 2018 in which he specifically alleged that said defendants violated the Property Maintenance Code §§ 302.2 and 304.7. The law is clear. A bill of particulars is designed to amplify pleadings, limit proof and prevent unfair surprise at trial (Harmon v. Peats Co., 243 NY 473 [1926]; Castleton v. Broadway Mall Props., Inc., 41 AD3d 410 [2' Dept. 2007]). Pursuant to CPLR 3042(b): "In any action or proceeding in a court in which a note of issue is required to be filed, a party may amend the bill 10 10 of 19 FILED: NASSAU COUNTY CLERK 02/09/2023 12/03/2018 10:13 09:10 PM AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 325 227 RECEIVED NYSCEF: 02/09/2023 12/03/2018 of particulars once as of course prior to the filing of a note of issue" (Emphasis Added). However, CPLR 3043(b) allows tile plaintiff in a personal injury case to serve a supplemental bill of particulars, also as a matter of right, but only "with respect to claims of continuing special damages and disabilities." Thus, while the supplemental Bill of Particulars permits the plaintiff to expand on the extent of the injuries and damages (Tate v. Colabello, 58 NY2d 84 [1983]), the law prohibits it from being used to add a new cause of action, a new theory, or to assert a new injury (CPLR 3043[b]; Barrera v. City of New York, 265 AD2d 516 [2nd Dept. 1999]). Given these guidelines, this Court finds that, contrary to the plaintiffs contention, the plaintiff is not entitled to assert and rely upon the specific statutory code violations of the Property Maintenance Code as advanced in his fourth supplemental bill of particulars. It is plain that such claims and allegations advance new statutory causes of action. These alleged violations present new claims (statutory/code violations) that were never raised in the complaint or in any of the previous Bills of Particular. For instance, in his original verified Bill of Particulars, plaintiff claimed: "[S]tatutes are not required to be specified in a bill of particulars unless they are raised in the complaint. No such [statutory or code] violations are claimed in the plaintiff's complaint" (January 5, 2015 Bill of Particulars, 114) and in his "First Supplemental" Bill of Particulars, plaintiff reiterated "Statutes are not required to be specified in a bill of particulars unless they are raised in the complaint. No such violations are claimed in the plaintiffs complaint" (July 9, 2015 Bill of Particulars, 17). Accordingly, this Court finds that any allegation in the fourth Bill of Particulars as to the specific provisions of the Property Maintenance Code present a new theory that by the plaintiff's own admission was not raised either in the Complaint or for that matter in any previous iteration of his Bills of Particular. Accordingly, this Court will not permit the plaintiff herein to rely upon said specific statutory 11 11 of 19 FILED: NASSAU COUNTY CLERK 02/09/2023 12/03/2018 10:13 09:10 PM AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 325 227 RECEIVED NYSCEF: 02/09/2023 12/03/2018 at 518; code violations at this juncture (CPLR 3043[b]; Barrera v. City of New York, supra 148 AD3d 873, 877 Romanello v. Jason, 303 AD2d 670 [2nd Dept. 2003]; Mackauer v. Parikh, 294 AD2d 455 [2' Dept. 2002]). [rd Dept. 2017]; Bartkus v. New York Methodist Hosp., Therefore, in determining the motions at hand, this Court will limit the plaintiffs claims as advanced in his complaint, Bill of Particulars and three Supplemental Bills of Particular — i.e., his common law ordinary negligence claims relating to his slip and fall on ice on the sidewalk. Thus, while the property code violations will not specifically be considered herewith, plaintiffs allegation in his original bill of particulars, as relating to among other things, the downspouts and gutters will be addressed. To that extent, this Court notes that at the heart of the instant motions by defendants Morton and Philips and the cross motion by plaintiff Michael Messina is the issue of the downspouts and gutters. Indeed, in his cross motion for summary judgment against the defendants, plaintiffs entire theory of the case rests upon his claim that the defendants caused and created the icy condition by allowing the downspouts to discharge directly onto the pitched sidewalk — which also violated the Property Maintenance Code §§302.2 and 304.7. In support of his cross motion, plaintiff relies upon, inter alia, the expert affidavits of George Wright, Certified Consulting Meteorologist and Anthony Mellusi, P.E., a Professional Engineer. In pertinent part, Mr. Wright, opined as follows: *** 16. In my opinion, based upon a reasonable degree of meteorological certainty, the Plaintiff slipped and fell upon ice formed by the melting snow and the rain that ponded on the subject walkway on January 6, 2014 that subsequently froze into ice after 8:30 p.m. on this day. Allowing for three (3) hours for all of the meltwater and rainwater to freeze into solid ice, the ice Plaintiff slipped and fell upon formed by 11:30 p.m. on January 6, 2014, was present on the walkway for more than 66 hours prior to his incident and was therefore a long-standing condition. 12 12 of 19 FILED: NASSAU COUNTY CLERK 02/09/2023 12/03/2018 10:13 09:10 PM AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 325 227 RECEIVED NYSCEF: 02/09/2023 12/03/2018 *** (Motion, Ex. S) Notably, the expert meteorologist also took into account the report of plaintiff's engineering expert, Anthony Mellusi, a "Merchant Marine Licensed Engineer" who opines, in pertinent part, as follows: *** It is my opinion to a reasonable degree of engineering certainty that the downspouts leading directly onto the sidewalk constitute a nuisance, trap and slipping hazard From my inspection of the subject premises, I found that the building's roof drain systems discharged directly onto the back sidewalk. This sidewalk is utilized by pedestrian traffic, as shown by Mr. Messina's slipping and falling on it. The slope of the sidewalk is pitched in such a manner that roof water discharging from the downspout onto the sidewalk will flow in a direction towards the area of the exit door, which Mr. Messina had walked out of.*** Property Maintenance Code §302*** Property Maintenance Code §304*** It is my opinion to a reasonable degree of engineering certainty that the downspouts leading directly on the sidewalk that Mr. Messina slipped and fell on are a direct violation of Property Maintenance Code §§302.2 and 304.7. It is my opinion to a reasonable degree of engineering certainty that these violations constituted a nuisance, trap and a slipping hazard for all users of this sidewalk. It is my opinion to a reasonable degree of engineering certainty that the water discharging from the roof onto the sidewalk is ponding on the sidewalk and freezing when temperatures reach freezing point. In this case, water from the roof discharged from the downspouts on January 5, 2014 when the temperature rose to unseasonably mild temperatures. It is my opinion to a reasonable degree of engineering certainty that this water ponded on the subject sidewalk where Mr. Messina slipped and fell. The ponded water then froze on January 6, 2014 during a "flash freeze." It is my opinion to a reasonable degree of engineering certainty that this ice was the ice that Mr. Messina slipped and fell on. It is my opinion to a reasonable degree of engineering certainty that the water, which ponded and froze into the ice that Mr. Messina slipped and fell on would not have been present if not for the downspouts violating Property Maintenance Code §§302.2 and 304.7. It is therefore my opinion to a reasonable degree of engineering certainty that Mr. Messina's slip and fall was the result of the negligence of the building owners and 13 13 of 19 FILED: NASSAU COUNTY CLERK 02/09/2023 12/03/2018 10:13 09:10 PM AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 325 227 RECEIVED NYSCEF: 02/09/2023 12/03/2018 management for failing to properly maintain and did discharge water from the roofs through a property storm drain system. *** (Motion, Ex. T). Again, having determined that the plaintiffs claims of violations of the Property Code were improperly advanced in his "fourth" supplemental bill of particulars, supra, this Court will not consider any discussion of said code provisions in any expert affidavit (or other proof and submissions) including the affidavit of Mr. Mellusi. Moreover, in support of their motion for summary judgment dismissal of the plaintiffs complaint, defendants Morton and Philips submit, inter alia, that plaintiffs claims must be dismissed in their entirety because, among other things, Morton was an out of possession landlord that contractually delegated all snow or ice cleaning activities regarding the subject sidewalk to its property manager, the defendants did not acquire either actual or constructive notice of the allegedly icy condition upon which the plaintiff claims he slipped or of any other allegedly defective condition as a matter of law. Philips also maintains that, as the managing agent of the landlord, it did not owe a legal duty to the plaintiff This Court begins by addressing the defendant Philips' claim that as the managing agent of the landlord owner, it did not owe a legal duty to the plaintiff The law on this issue is well settled. In its seminal 2002 decision of Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136, the Court of Appeals, held that while, ordinarily, "a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party.. .we have recognized that under some circumstances, a party who enters into a contract thereby assumes a duty of care to certain persons outside the contract" (Id. at138-139 [citations omitted]). The Court identified three situations and accordingly carved out three exceptions to the general rule that no tort liability in 14 14 of 19 FILED: NASSAU COUNTY CLERK 02/09/2023 12/03/2018 10:13 09:10 PM AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 325 227 RECEIVED NYSCEF: 02/09/2023 12/03/2018 favor of a third party will arise — i.e., there are only "three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care—and thus be potentially liable in tort—to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm' ***(2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties *** and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely*** " (Id. at 140 [citations omitted]). Based upon the papers submitted herewith, it is clear that by admitting to step into the shoes of the landlord/owner, the defendant Philips did owe a duty of care to the plaintiff herein. Indeed, based upon his own testimony, Raymond Sohmer, the property director of Philips admitted, among other things that it was his responsibility to "manage the day to day operations" of the Morton Village property including identifying and making any necessary repairs. Specifically, Sohmer explained that if he discovered something which needed maintenance, he would first determine if it was the responsibility of the landlord or the tenant and that if he determined that it was the landlord's responsibility, he would resolve the issue. (If, on the other hand, it was the tenant's responsibility, he would address it with the tenant.) Given the foregoing, this Court finds that Philips obligations were so comprehensive — as property manager to the property owned by Morton, a contracting party — that it owed "a duty to "noncontracting individuals reasonably within the zone and contemplation of the intended safety services," including the plaintiff (Espinal v Melville Snow Contrs., supra at 140). Moreover, a real property owner or a party in possession or control of real property will be held liable for injuries sustained in a slip-and-fall accident involving snow and ice on its property only when it created the alleged dangerous condition or had actual or constructive 15 15 of 19 FILED: NASSAU COUNTY CLERK 02/09/2023 12/03/2018 10:13 09:10 PM AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 325 227 RECEIVED NYSCEF: 02/09/2023 12/03/2018 Flores v BA.1 Holding Corp., 94 notice of it (Denardo v Ziatyk, 95 AD3d 929 [2" Dept. 2012]; 87 AD3d 1106 [2" AD3d 945 [2" Dept. 2012]; Cantwell v Fox Hill Community Assn., Inc., 62 AD3d 823 [2" Dept. 2009]). Thus, a Dept. 2011]; Crosthwaite v Acadia Realty Trust, defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (Santoliquid° v Roman Catholic Church of Holy Name of Jesus, 37 AD3d 815, 815-816 [2" Dept. 2007]). This Court finds that, in this case, the defendants Morton and Philips have met this burden by submitting evidence sufficient to demonstrate that they did not create or have any notice — either actual or constructive — of the allegedly defective gutters and downspouts that purportedly created the icy condition upon which the plaintiff fell (Cantwell v Fox Hill Community Assn., Inc., supra; Robinson v Trade Link Am., 39 AD3d 616 [2" Dept. 2007]; Murphy v 136 N Blvd. Assoc., 304 AD2d 540 [2' Dept. 2003]). The defendants have also established that they did not have notice of the icy condition itself that allegedly caused the plaintiff to fall. Specifically, based upon the papers submitted herewith, this Court finds that on this record, there is no evidence that either defendant Morton or Philips installed the gutters at the location or received any complaints regarding same. Philips' property director, Raymond Sohmer, testified that ever since he has managed the subject property in 2005 or 2006, he did not receive any complaints regarding the gutters nor he did know who installed them. Furthermore, the plaintiff himself testified that, despite the fact that he worked at Mr. Joe's seven days a week (as a manager), he never complained about water discharge from the gutters and/or leaders. 16 16 of 19 FILED: NASSAU COUNTY CLERK 02/09/2023 12/03/2018 10:13 09:10 PM AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 325 227 RECEIVED NYSCEF: 02/09/2023 12/03/2018 Indeed, Michael Ruggiero, the owner of Mr. Joe's at the time of plaintiff's accident, also testified that he did not notice water running from the leaders to the ground, and that, he too never complained about any water discharge from the leaders, gutters or about any snow or ice conditions on the rear sidewalk of the subject premises. The defendants have also demonstrated that they did not have any constructive notice of the allegedly defective gutters that purportedly created the icy condition upon which plaintiff ultimately slipped and fell. Moreover, even assuming that the defendants could be so charged with knowing that the gutters created icy conditions, the law requires more than a "general awareness" of the allegedly defective condition to legally impute constructive notice of the particular dangerous condition (Cruz v Rampersad, 110 AD3d 669 [2nd Dept. 2013]; Kaplan v d Dept. DePetro, 51 AD3d 730 [2nd Dept. 2008]; Edwards v DeMatteis Corp., 306 AD2d 309 [2' 2003]). To that extent, this Court finds that the plaintiff has failed to establish that the defendants herein had more than a "general awareness" of any such defective condition, if any at all — i.e., gutters that created the specific icy conditions. Thus, the evidence herewith establishes that none of the parties — including the plaintiff— were aware of any prior complaints regarding the gutters or icy conditions at the incident location. Notably, in opposition, and in