Motion-Secondary: Veljko Banic, Empire Executive Inn Llc THIRD PARTY PLAINTIFF, Crown Plaza Of Suffern THIRD PARTY PLAINTIFF, Pacrim Hospitality Services THIRD PARTY PLAINTIFF, Phs Us Management THIRD PARTY PLAINTIFF v. Pat Scanlan Landscaping, Inc. THIRD PARTY DEFENDANT, Lynmark Construction And Management Co., Inc., Executive Associates North Ii, L.L.C., Empire Executive Inn, Llc, Crowne Plaza Suffern, Pacrim Hospitality Services, Phs Us Management

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                                (FILED: ROCKLAND COUNTY CLERK 0971872013)                                                                     INDEX    NO.   034380/2011
NYSCEF   DOC.   NO}}   58                                                                               RECEIVED   NYSCEF     09/18/2)13



                            SUPREME COURT OF THE STATE OF NEW YORK
                            COUNTY OF ROCKLAND
                            ween nn taenuennnnaenne nent mene nnetitt ins mamma meme        Our File No. 15914DSMTW.

                            VELIKO BANIC,
                                                                      Plaintiff,            Index No. 034380/11
                                    -against-
                                                                                            AFFIRMATION IN
                                                                                            OPPOSITION
                            PAT SCANLAN LANDSCAPING, INC., LYNMARK
                            CONSTRUCTION AND MANAGEMENT CO., INC.,
                            EXECUTIVE ASSOCIATES NORTH I, L.L.C.;
                            EMPIRE EXECUTIVE INN, LLC., CROWNE
                            PLAZA SUFFERN; and, PACRIM HOSPITALITY
                            SERVICES,
                                                         Defendants.
                            pene eee nee nen          nee nnn ne annem atin satam mm


                                    Sim R. Shapiro, an attorney duly admitted to practice law before the Courts of the State

                            of New York, hereby affirms the following to be true under the penalties of perjury:

                                    1       Yam a member of the law firm of Baxter Smith & Shapiro, P.C., attorneys for

                            the defendant, Pat Scanlan Landscaping, Inc.(hereinafter “Pat Scanlan Landscaping”) and, as

                            such, I am fully familiar with the facts and circumstances set forth herein.

                                    2           ‘This affirmation is submitted in opposition to the motion for summary judgment

                            brought by the defendant Empire Executive Inn, LLC., d/b/a Holiday Inn, Crowne Plaza

                            Suffern and PHSUS Management (hereinafter “Empire Executive Inn, et al.”). To the extent

                            set forth herein, it is respectfully requested that the motion be denied.

                             EMPIRE EXECUTIVE INN, ET. AL. HAS FAILED TO SET FORTH A SUFFICIENT
                             BASIS FOR GRANTING SUMMARY JUDGMENT ON THEIR CROSS-CLAIM FOR
                                                 COMMON LAW INDEMNITY

                                    3           As part of their motion, Empire Executive Inn, et. al. have argued that they are

                            entitled to common law indemnity from Pat Scanlan Landscaping. based upon the contract

                            between those entities. However, they have failed to demonstrate their entitlement to judgment

                            as a matter of law.

                                    4.          The co-defendants would have this Court grant summary judgment on their

                            cross-claim against Pat Scanlan Landscaping, Inc. even though the incident fell outside the
scope of the agreement between the parties.           See Exhibit “H” and “I” annexed to Empire

Executive Inn, et. al.’s motion.

        5         It is undisputed that there was no precipitation of over two inches between

February 2, 2011 and the subject incident of February 8, 2011. In the week between the time

that the parking lot was last shoveled and the date of the incident, Mr. Banic was in the parking

lot regularly but had no complaints about the condition of the asphalt:

                  Q         Did you have any problems walking on the parking lot the
                            week before the accident, did you have any problems for the
                            week preceding the accident up until the accident?

                            I didn’t feel | had no problems.

                             Did you have any complaints about the condition of the
                             asphalt?

                            No.

                             Are you aware any of complaints that anybody else on the
                             site made with respect to the condition of snow or ice on the
                             parking lot?

                  A          No.

See Exhibit “D” annexed to co-defendants’ motion, p. 71.

            6     Additionally, Pat Scanlan Landscaping was not asked to return to the property

 between February 2, 2011 and February 8, 2011. See Exhibit “E” annexed to co-defendants’

 motion, p. 48.

            7     The fact that virtually no snow fell in the six days leading up to the incident —

 and the plaintiff's     testimony in this regard - is important because the agreement specifically

 limited snow plowing to accumulations of a minimum of two inches. See Exhibit “H” annexed

 to co-defendants’        motion.   Since Pat Scanlan Landscaping had plowed on that day, no

 additional requirement to return had been triggered.

            8         Indeed, the agreement specifically stated that “[d]ue to variables of temperature,
compaction, winds, drifting, etc., it is impossible to guarantee removal to the bare to the

pavement.” See Exhibit “H” annexed to co-defendants’ motion. Thus, the agreement makes its

clear that there was no requirement to remove all snow and ice from the subject parking lot.

The co-defendants are essentially seeking to have this Court expand the reach of the subject

agreement,

        9         Even more significantly, the agreement provided the following:

                  It is the duty of the customer to clear the designated areas of all
                  moveable objects including, but not limited to, automobiles, trash;
                  dumpsters; etc. Any object which remains        will be left in place and
                  plowed around and contractor shall be           hold harmless for any
                  damages resulting to such obstacles unless      the damage results from
                  the gross negligent conduct of the contractor    or its employees.

See Exhibit “H” annexed to co-defendants’ motion.

        10.       Therefore, it was the duty of the co-defendants to make sure that the parking

area was clear of cars. To put this responsibility on Pat Scanlan Landscaping represents is yet

another attempt to expand the scope of the agreement in a transparent effort to obtain summary

judgment when it is not appropriate. Such tactics are improper and should not be countenanced

by this Court.

            11.   Additionally, Mark Femiano of Pat Scanlan Landscaping. testified that if there

was additional work to be done after the initial phone call, his company would be called rather

than coming on its own. See Exhibit “E” annexed to co-defendants’ motion, pp. 47-48.

            12,   Furthermore, Mark Goldstein, who testified on behalf of the co-defendants,

testified that to his knowledge, Pat Scanlan Landscaping’s responsibilities were to plow the

 “accesses” and to “shovel the main sidewalk accesses so people could get in and out, the

 construction people.” See Exhibit “F” annexed to co-defendants’ motion, p. 19. There was no

 reference to the individual parking spaces where the plaintiff allegedly fell.         Even when he

 testified that he was aware that Pat Scanian Landscaping, Inc. was “doing the parking lot,”
there was no testimony that there was such a requirement under the agreement.                See Exhibit

*F* annexed to co-defendants’ motion, p. 33.

        13.     It is, of course, the movants’ burden to establish their entitlement to summary

judgment. Navetta vy. Onondaga Galleries Ltd. Liability Co., 106 A.D.3d 1468, 964 N.¥.S.2d

835 (4" Dept. 2013). “{I]n the case of common-law indemnification, the one seeking

indemnity must prove not only that it was not guilty of any negligence ... but must also

prove that the proposed indemnitor was guilty of some negligence that contributed to the

causation of the accident for which the indemnitee was held liable to the injured party by

virtue of some obligation imposed by Jaw ... .” Correia v. Professional Data Management,

Toc., 259 A.D.2d 60, 693 N.Y.S.2d 596 as Dept.                1999).    Here, the co-defendants have

failed to meet their burden since they have not established either prong of this standard.

They have failed to show that they were free from negligence’, i.e. as property owners and

managers, that they the responsibility to maintain the property (see Tate v. Golub Properties,

Inc., 103 A.D.3d 1080, 960 N.Y.S.2d 260 (3" Dept. 2013) or that Pat Scanlan Landscaping

was actively negligent. On the contrary, Pat Scanlan Landscaping, Inc. did not even violate

the subject agreement. It follows that summary judgment should be denied.


 THAT PORTION OF THE MOTION THAT SEEKS SUMMARY JUDGMENT ON
   THE CLAIM OF FAILURE TO PROCURE INSURANCE SHOULD ALSO BE
                             DENTED


        14.      Empire Executive Inn, et. al. have also vaguely argued that they are entitled

to “full indemnification and a defense” from Pat Scanlan Landscaping based upon the failure

to name them as additional insureds on Pat Scanlan Landscaping’s insurance policy.                     See

motion for summary judgment, §] 46-47; 52.               According to the co-defendants, they were



‘As property owners and managers, they the responsibility to maintain the property. See e.g. Tate v. Golul
Properties, Inc., 103 A.D.3d 1080, 960 N.Y.S.2d 260 G" Dept. 2013).
                                                     4
entitled to be named as additional insureds and are now entitled to “all damages resulting

from the breach ... .” See co-defendants’ motion, 947.

        15.      The aforementioned arguments made by the co-defendants misstate both the

facts and the law.    First, a review of the agreement, annexed to the motion as Exhibit “H,”

shows   that there   is no    requirement   that any    insurance   be   purchased   naming   the co-

defendants as additional insureds.       See Exhibit “HT” annexed to co-defendants’ motion. The

the co-defendants are arguing that Pat Scanlan Landscaping somehow breached a clause that

does not exist. Surely, it is clear that such an argument is misplaced.

        16,      Furthermore,     even   if Pat   Scanlan   Landscaping     had   breached    such   an

agreement, the co-defendants misstate their damages.           They are not, as argued by the co-

defendants, entitled to “all damages resulting from the breach, including a defense             .” See

co-defendants’ motion, {47.       On the contrary, the law is well-settled that so long as the co-

defendants had their own insurance, the damages are limited to out-of-pocket expenses

caused by the breach (such as insurance premiums).              Inchaustegui_v. 666 5th Ave. Ltd.

Partnership, 96 N.Y.2d 111, 749 N.E.2d 196, 725 N.Y.S.2d 627 (2001).                 This has been the

law since 2001.       In turn, the co-defendants’       assertion that the law is “well-settled” is

specious.     A review of the cases cited by the co-defendants reveals that al] were issued prior

to Inchaustegui, supra.      It follows that this portion of the motion should be denied as well.

                                            CONCLUSION

        17.       The co-defendants have sought summary judgment on their cross-claim for

 common Jaw indemnity against Pat Scanlan Landscaping based upon the agreement between

those parties.    However, that agreement was limited in its scope and there is no indication

 that there was any requirement for Pat Scanlan Landscaping to plow or otherwise salt the

 area where the plaintiff fell because there was no requirement that it be present on the site

 between February 2, 2011 and February 8, 2011. Nor have the co-defendants established
                                                    5
that they were    free from negligence.    As the owners    of the property they have readily

acknowledged that they had a duty to maintain it. Jn turn, they have failed to establish either

prong of the standard required to obtain summary judgment on the common law indemnity

claim.

         18.     Even more troubling is the co-defendants’ argument that they are somehow

entitled to damages based upon the breach of an agreement to procure insurance. There was

no such agreement attached to the motion and, upon information and belief, no such

agreement exists.    A certificate of insurance, of course, would not constitute an agreement

by Pat Scanlan Landsaping to procure insurance for the benefit of the co-defendants.       In any

case, even if there had been such a breach, damages would be limited to out-of-pocket

expenses. Consequently, this portion of the motion should be denied as well.

         19.     Rather, to the extent that this Court holds that there is an issue of fact with

regard to the co-defendants’ actual or constructive notice or creation of the alleged condition

upon which the plaintiff slipped, the co-defendants’ motion should be denied in its entirety

as there are issues of fact as to their own negligence.

         WHEREFORE,       it is respectfully requested that this Court deny Empire Executive

Inn, et. al.’s motion, together with such other and further relief as it deems just and proper.

Dated: White Plains, New York
       September 18, 2013                                                   “3
                                                                       \


                                                                           Shapiro
AFFIDAVIT OF SERVICE BY E-FILE

    STATE OF NEW YORK )
    COUNTY OF WESTCHESTER) ss.:

           ELSA A. COLOTTI, being duly sworn, deposes and says:

           Deponent is not a party to the action, is over 18 years of   age and resides in
    Westchester, New York.

          On he
             ‘f   day of September, 2013, deponent served the within AFFIRMATION IN
    OPPOSITION, upon the following at their respective addresses:

    TO:

    JOSEPH E. O’CONNOR, ESQ.
    MAINETTI, MAINETTI & O’CONNOR, P.C.
    Attorneys for Plaintiff(s)
    130 N. Front Street
    P.O. Box 3058
    Kingston, New York 12402
    (845) 331-9434

    WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP.
    Attorneys for Defendants
    EMPIRE EXECUTIVE INN, LLC. d/b/a HOLIDAY INN,
    CROWNE PLAZA SUFFERN, AND PHS US MANAGEMENT
    3 Gannett Drive
    White Plains, New York 10604
    914-323-7000(P)
    914-323-7001(F)
                                                             ae
    by E-FILING.
                                                             ELSA A. COLOTTI
    Sworn to before me this

/      day of September, 2013


    NOTARY     PUBLIC

    SIM R. SHAPIRO
    Notary Public, State of New York
    Reg. No 02SH6008722
    Qualified in Westchester County
    My Commission Expires June 15, 2014
Index No,: 034380/2011

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND

VELJKOL BANIC,
                                  Plaintiff,

                     -against-

PAT SCANLAN LANDSCAPING, INC.; EMPIRE EXECUTIVE INN, LLC. d/b/a HOLIDAY
INN; CROWNE PLAZA SUFFERN; and, PHS US MANAGEMENT,

                                  Defendants.

                             AFFIRMATION IN OPPOSITION



                         BAXTER SMITH & SHAPIRO, P.C.
                                      Attorneys at Law
                                  Attorneys for Defendant
                            PAT SCANLAN LANDSCAPING, INC.
                          200 MAMARONECK AVENUE, SUITE 601
                             WHITE PLAINS, NEW YORK. 10601
                                       (914) 684-1055