Motion-Secondary: Mildred Villano v. Mutual Redevelopment Houses, Inc., Hercules Corp.

On May 05, 2017 a Motion-Secondary was filed involving a dispute between Mildred Villano, and Hercules Corp., Mutual Redevelopment Houses, Inc., for Torts - Other Negligence (Premises Liability) in the District Court of New York County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------------------X
MILDRED VILLANO,
Index No.: 154224/2017-E

Plaintiff,

-against- AFFIRMATION
IN OPPOSITION TO
DEFENDANTS'

RESPECTIVE
MOTIONS FOR
SUMMARY JUDGMENT

MUTUAL REDEVELOPMENT HOUSES, INC. and
HERCULES CORP.,

Defendants.
---------------------------------------------------------------------X

Keith M. Sullivan, Esq., 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. I am a partner at the law firm of SULLIVAN & GALLESHAW, LLP, attorneys

for the Plaintiffs herein, and as such am fully familiar with the facts and circumstances of the

within action based upon a file maintained by this office and conversations with the Plaintiffs.

2. This Affirmation is submitted in opposition to Defendants MUTUAL

REDEVELOPMENT HOUSES INC.'s and Defendant HERCULES CORP.'s respective motions

seeking an Order granting the Defendants Summary Judgment pursuant to CPLR § 3212 and

dismissing the Plaintiff's Complaint.

Defendants'
3. respective motions must be denied as to the Plaintiff for two reasons.

First, the Defendants have failed to allege sufficient facts to meet their respective burdens in

establishing a prima facie case to entitlement to judgment at law. Second, even if defendants

establish a prima facie case to entitlement to judgment at law, several issues of triable fact exist.

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PROCEDURAL HISTORY

Defendants'
4. In the interest of judicial economy, the Plaintiff adopts the statements

regarding the procedural history of this action. (See Def. Mutual Mot. at 2, ¶¶ 4-6; see also Def.

Hercules Mot. at 2, ¶¶ 5-6).

STATEMENT OF FACTS

5. This is a personal injury and premises liability action stemming from a slip and

fall occurring on June 27, 2015 between 4:00 p.m. and 5:00 p.m. in the common laundry room of

24th
the building located at 311 West

24th
6. The plaintiff has resided at 311 West Street, New York, New York since

1988. (See Def. Mutual Ex. I at pages 8-9). Throughout her tenure, the plaintiff has used the

communal laundry to do her laundry every other week. (See id. at page 28).

7. On the day of the accident, the plaintiff had started her cycle of wash and shortly

thereafter slipped and fell on water that had been from the machine. (See id. at pages 34-
leaking

35). She had previously observed water on the floor in the laundry room but itwas occasioned

with yellow warning signs. However, on thisoccasion there was no warning. (See id. at pages

37-40). As a result of her injury, the plaintiff underwent shoulder surgery.

ARGUMENT

defendants'
8. The respective motions for summary judgment against the Plaintiff

must be denied as both defendants for two reasons. First, both defendants fail to establish

entitlement to summary judgment as neither defendant has made a prima facie showing that they

did not create the dangerous condition and/or have constructive notice of the dangerous

condition that caused the plaintiff to slip and fall. Second, the plaintiff can show that several

issues of triable fact exist precluding summary judgment.

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LEGAL STANDARD

9. Summary judgment is a drastic remedy that deprives a litigant of his or her day in

court and should not be granted absent conclusive evidence demonstrating that no material issues

of fact exist. (See Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957)).

Indeed, the court's function on motion for summary judgment is issue finding rather than

issue determination. (See id.). Accordingly, when the existence of an issue of fact is even

arguable or debatable, summary judgment should be denied without regard to the sufficiency of

the opposing papers. (See Stone v. Goodson, 8 N.Y.2d 8, 167 N.E.2d 328, 200 N.Y.S.2d 627,

(1960); see also Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 501 N.E.2d 572, 508 N.Y.S. 2d 923).

10. The proponent of a motion for summary judgment carries the initial burden of

production of evidence as well as the burden of persuasion. (See id.). Thus, the moving party

must tender sufficient evidence to demonstrate as a matter of law the absence of a material issue

of fact. If and only a movant meets its initial burden does the burden shift to the opposing party

to demonstrate the existence of a triable issue of fact (See Zuckerman v City of New York, 49

NY2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980]). "The burden of persuasion,

issue."
however, always remains where it began, i.e., with the proponent of the (Brown v

Addison Hall Owners Corp., 2015 NY Slip Op 30795[U] [Sup Ct, Bronx County 2015]).

Accordingly, a "defendant's motion for summary judgment opposed by the plaintiff must be

plaintiff."
decided on the version of the facts most favorable to the (Mullin v 100 Church LLC,

12 A.D.3d 263, 264, 784 N.Y.S.2d 545 [1st Dept 2004]).

I. Defendant Hercules Is Not Entitled to Summary Judgment Against The Plaintiff

11. Defendant Hercules is not entitled to judgment at law against the Plaintiff.

Defendant Hercules makes two arguments in support of its motion for summary judgment

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against the Plaintiff. First, Defendant Hercules asserts that itowed no duty of care to the Plaintiff

because Defendant Hercules provided services as an independent contractor. Second, Defendant

Hercules asserts that it neither created nor had actual or constructive notice of the hazardous

condition that caused the Plaintiff's injuries. For the following reasons, both arguments fail and

Hercules'
Defendant motion for summary judgment against the Plaintiff must be denied.

1) Defendant Hercules Owed A Duty to The Plaintiff

12. Defendant Hercules owed a duty of care to the Plaintiff because the Plaintiff is an

intended third-party beneficiary of the Laundry License Agreement. The elements of negligence

are well established. (See Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 33 (1981),

reargument den., 54 N.Y.2d 831). A defendant whose breach of a duty owed the plaintiff that

causes the plaintiff to be injured will be liable for negligence. (See id.). Accordingly, the

threshold question is whether the alleged tortfeasor owed a duty of care to the injured plaintiff.

(See Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136, 138 (2002).

a. The Plaintiff Is An Intended Third-Party Beneficiary Of the Laundry
License Agreement.

13. Defendant Hercules owed a duty of care to the Plaintiff because the Plaintiff is an

intended third-party beneficiary of the Laundry License Agreement. "As a general rule,

contractual obligations impose a duty in favor of both the promisee and intended third-party

beneficiaries."
(Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d at 226 [1990]

(emphasis added)). An intended third-party beneficiary will be found when the circumstances

indicate that the promisee intended to give the third-party the benefit of the promised

performance. (See Restatement (Second) of Contracts § 302 [1981]); Fourth Ocean Putnam

Corp. v. Interstate Wrecking Co., 66 N.Y.2d 38, 44-45, 495 N.Y.S.2d 1, 5, 485 N.E.2d 208, 212

[1985]) (confirming that New York has adopted the Restatement approach to determining

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whether a third-party beneficiary exists); Port Chester Elec. Constr. Corp. v Atlas, 40 N.Y.2d

652, 655, [1976]).

14. The intent to confer a benefit on a third-party involves a find of fact that is rarely

appropriate for judgment. (See Resource Dev. v. Statute - Ellis 926
summary of Liberty Island,

F.2d 134, 141 (2d Cir. 1991) (applying New York law). However, "summary judgment would be

rendered sterile . . .if the mere incantation of intent would operate as a talisman to defeat an

motion."
otherwise valid (Id.) Accordingly, the plaintiff need only establish an issue of triable

fact as to his or her third-party beneficiary status to defeat a defendant's motion for summary

judgment. (see Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d at 226 [1990] ;

Restatement (Second) of Contracts § 302 [1981]); (see also Fourth Ocean Putnam Corp. v.

Interstate Wrecking Co., 66 N.Y.2d 38, 44-45, 495 N.Y.S.2d 1, 5, 485 N.E.2d 208, 212 [1985]).

15. While the best evidence of intent may be found in the agreement itself, courts

may also look at the surrounding circumstances to determine third-party beneficiary status.

Where performance is to be made directly to a third party, that party is generally deemed an

intended beneficiary of the contract and is entitled to enforce itor there is,at least, a presumption

that the contract was for the benefit of the third party (See Goodman-Marks Assoc. v Westbury

Post 70 A.D.2d (see also Drake v 89 A.D.2d 207). it is also well-
Assoc., 145); Drake, Indeed,

settled that the obligation to perform to the third-party beneficiary need not be expressly stated in

the contract. (See Strauss v. Belle Realty Co., 98 A.D.2d 424, 426-27, 469 N.Y.S.2d 948, 950 (2d

Dep't 1983), affd, 65 N.Y.2d 399, 492 N.Y.S.2d 555, 482 N.E.2d 34 [1985]} (emphasizing that a

third-party need not be identified in contract but need only show intent of contracting parties to

benefit third party to enforce a promise); (see also World Trade Knitting v. Lido Knitting, 154

A.D.2d 99, 551 N.Y.S.2d 930, 933-934 (AD. 2d Dept. 1990) ("In conducting this inquiry, the

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court is guided by the well-established principle that it is not necessary that a third-party

beneficiary be identified or even identifiable at the time the contract is made.").

16. Here, both the Laundry License Agreement and the circumstances surrounding

Hercules'
the performance of Defendant obligations under the Laundry License Agreement

indicate an intention to confer a benefit upon the Plaintiff as an intended third-party beneficiary.

The Laundry License Agreement provides:

A. [Defendant Mutual] hereby grants to [Defendant Hercules] the
exclusive right to provide install, operate, maintain, and manage laundry
equipment in [Defendant Mutual's] ten (10) laundry rooms located in the
said buildings for the exclusive use by [Defendant Mutual'sJ residents[.]
(See Def. Mutual Ex. F. at 5) (emphasis added).

17. It is undisputed that the Plaintiff is a resident of Defendant Mutual's apartment

24th 8-
complex at 311 West Street, New York, New York since 1988. (Def. Mutual Ex. I at pgs

9). Accordingly, the Plaintiff is a member of the class of third parties that the contracting parties

intended to benefit from the services of Defendant Hercules. (See Nepco Forged Prods., Inc. v.

Consolidated Edison Co. of N.Y., 99 A.D.2d 508, 470 N.Y.S.2d 680, 681 [2d Dep't 1984]).

18. The terms of the Laundry License Agreement indicate that Defendant Hercules

was contracted to confer upon the residents of Defendant Mutual's properties, including the

Hercules'
Plaintiff, the benefit of exclusive use of Defendant laundry equipment and any

services, maintenance, repairs, and management necessary to ensure the residents of Defendant

Hercules'
Mutual's properties could properly and safely use Defendant laundry equipment.

Indeed, the Laundry License Agreement further provides:

4. and Repairs - The services to be
Service, Maintenance,
provided by [Defendant Hercules] shall include repair,
maintenance, and replacements and shall also include labor and all
other work required for any reason whatsoever . .. to maintain the
equipment in good operating order at all times [and] . . . shall

supply parts and all other materials necessary to maintain the

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equipment and the plumbing, electrical, and venting systems
appurtenant thereto so that the equipment and such systems
continue in a state of clean an efficient operation at all times.
(See Def. Mutual Ex. F. at 6-7)

19. The Laundry License Agreement further provides an enforcement mechanism for

the residents of Defendant Mutual's properties. Indeed, Schedule H to the Laundry License

Agreement provides:

HERCULES SMART CENTER
Hercules will install ten (10) Hercules Smart Centers, one (1) in
each laundry facility, providing building residents . . . with the

ability to immediately communicate with Hercules, directly from
the laundry room. [A]ny service issues can be reported to the
Hercules'
Customer Service Department by simply touching the
user friendly screen.
***

[T]he benefits to building residents include [inter alia] reporting of

machines out of order.
(See Def. Mutual Ex. F. at 35).

20. At his deposition, an employee for Defendant Hercules, Lev Makogon, testified

The Hercules Smart Center is a computerized system that allows residents to report problems

with laundry equipment to Hercules by entering the number of the machine on a touchpad and

selecting short description of the issue. (See Def. Mutual Ex. K. at page 16.). After completing

this process, an email is sent directly to Hercules and a technician is dispatched to remedy the

problem. (See id.).

Hercules'
21. Likewise, the circumstances surrounding the enforcement of Defendant

maintenance and management obligations under the Laundry License Agreement also confirm

that residents of Defendant Mutual's buildings were intended to benefit from the provisions of

the Laundry License Agreement. At her deposition, the Plaintiff testified that she and the other

Hercules'
building residents would also notify employees of machine defects by placing signs on

the defective machine. (See Def. Mutual Ex. I at pages 41-42).

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22. Accordingly, both the Laundry License Agreement and the circumstances

Hercules'
surrounding the performance of Defendant maintenance and management obligations

with regard to the laundry equipment under the Laundry License Agreement evince the

parties'
contracting intent to confer a benefit onto the residents of Defendant Mutual's properties,

including the Plaintiff. For these reasons, Plaintiff has established an issue of triable fact as to her

Hercules'
status as a third-party beneficiary to Defendant maintenance and management

Hercules'
obligations under the Laundry License Agreement. Therefore, Defendant motion for

summary judgment on the grounds that Defendant Hercules does not owe the Plaintiff a duty

should be denied.

b. Defendant Hercules Owed A Duty To The Plaintiff Under The Espinal
Exceptions.

23. Even if the Court were to find that the Plaintiff is not an intended third-party

beneficiary of the Laundry License Agreement, Defendant Hercules still owed the Plaintiff a

duty of care under the Espinal exceptions. See Espinal v. Melville Snow Contrs., 98 N.Y.2d 136,

139-143 [2002]).

24. Although a contractual obligation alone will generally not give rise to tort liability

in favor of a third party, he Court of Appeals has recognized three exceptions to the general rule:

"(1) where the contracting party, in failing to exercise reasonable care in the performance of his

[or her] 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."
(See id at 140 [2002]). An independent contractor may be held directly liable to the

plaintiff under any one of these three scenarios. (See id.). These principles are firmly rooted in

New York case law. (See id.).

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1. DefendantHerculesCreatedTheHazardousCondition.

25. Defendant Hercules owed the Plaintiff a duty to exercise reasonable care in

performing its preventative maintenance obligations under the Laundry License Agreement. (See

id.) The first Espinal exception merely requires a showing that the defendant's negligence in

performing its contractual obligations created or exacerbated the hazardous condition at issue.

See id.. "Exacerbating or creating a dangerous condition may be a more pedestrian--or less

elegant--description than launching a force or instrument of harm, but in practical terms the

same."
criteria are the Seeid. "The concepts have been applied interchangeably and should not

consequences."
carry different See id. Indeed, a defendant who undertakes to render services

and then negligently creates or exacerbates a dangerous condition should be liable for any

resulting injury. (See H. R. Moch Co. v Rensselaer Water Co., 247 NY 160, 167

(1928);seealso Restatement [Second] of Torts § 324A [a]).

26. Here, Defendant Hercules created the hazardous water condition through its

negligent maintenance of its washing machines. A photograph from the subject washing machine

shows that there is corrosive rust on the door of the machine from which water could have leaked

from the machine onto the floor creating the hazardous condition on which the Plaintiff slipped

and fell. The photograph is attached to Plaintiff's opposition papers as Exhibit A. (See PI. Ex.

A). Defendant Hercules negligence in failing to maintain and replace the worn and defective

parts of its washing created the hazardous water condition which caused the Plaintiff to slip and

fall.

Hercules'
2) Defendant Negligence In Maintaining The Washing Machines
CreatedTheHazardousCondition.

27. Defendant Hercules has failed to tender sufficient evidence demonstrating that it

did not create the hazardous condition. A defendant may establish itsprimafacie entitlement to

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judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of

his or her fall without engaging in speculation (See Belton v Gemstone HQ Realty Assoc., LLC,

145 AD3d 840, 841, 43 NYS3d 499 [2016] ; see also Hahn v Go Go Bus Tours, Inc., 144 A.D.3d

748, 749, 40 N.Y.S.3d 549 [2016]; Korn v Parkside Harbors Apts., LLC, 134 A.D.3d 769, 769,

22 N.Y.S.3d 99 [2015]). "This does not mean that a plaintiff must have personal knowledge of

the cause of his or her fall. (Izaguirre v New York City Tr. Auth., 106 A.D.3d 878, 878, 966

N.Y.S.2d 122 [2013]). "Rather, itmeans only that a plaintiff s inability to establish the cause of

his or fall-whether by personal knowledge or by other admissible proof-is fatal to a cause of

negligence."
action based on (Id.; see also Pol v Gjonbalaj, 125 A.D.3d 955, 955-956, 5

N.Y.S.3d 186 [2015]).

28. At her deposition, the Plaintiff identified the cause of her fall multiple times.

Indeed, the Plaintiff was asked by Defendant Mutual's attorney whether she made any

observations regarding the area where she slipped and fell after her accident while she was still

on the ground. (See Def. Mutual Ex. I at page 35, line 8-11.). The Plaintiff testified that she

machines.1
observed the area was wet and that water was emanating from one of the washing

The Plaintiff further testified that the cause of her slip and fall was an approximately two-foot by

two-foot puddle of water on the laundry room emanating from the door of the Defendant

Hercules'
washing machine. (See Def. Mutual Ex. I at pages 43-46). Finally, the Plaintiff

testified that she noticed a rag was placed under the subject washing machine upon returning to

the laundry room, and that said rag was wet. (See Def. Mutual Ex. I pages 46-47). A photograph

The Plaintiff's exact testimony is quoted below. Your Affirmant believes that the Affirmant for
A. I observed it was wet. I observed the water it was seeping
out of, I believe, one of the machines I just started. It was seeping
out.
(See Def. Mutual Ex. I at page 35, lines 12-15.).

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from the subject washing machine shows that there is corrosive rust on the door of the machine

from which water could have leaked from the machine onto the floor creating the hazardous

condition on which the Plaintiff slipped and fell. (See Pl. Ex. A). According the Plaintiff all

reasonable inferences and viewing the facts in most beneficial light for the Plaintiff, Defendant

Hercules has failed to tender sufficient evidence demonstrating that its negligence in

maintaining, and managing the machines did not create the hazardous condition which injured

the Plaintiff and/or that the Plaintiff could not identify the cause of her fall. (See Pol., at 955-956

[2015]).

29. To the extent Defendant Hercules asserts that it did not have actual or

constructive notice of the hazardous condition, such a contention would only be relevant if

Defendant Hercules demonstrated that itsnegligence did not create or exacerbate the hazardous

condition. Indeed, a defendant moving for summary judgment in a slip and fall action must

tender sufficient evidence showing that itdid not create the condition on which the plaintiff

slipped and did not have actual or constructive notice of that condition. (See Rogers v

Bloomingdale's, Inc., 117 AD3d 933, 985 NYS2d 731 [2014]; Armijos v Vrettos Realty Corp.,

106 A.D.3d 847, 965 N.Y.S.2d 536 [2013].

30. Even assuming arguendo that Defendant Hercules had met its burden, several

issues of triable fact exists precluding the grant of summary judgment. Plaintiff contends that

there are at least three issues of triable fact precluding summary judgment.

Hercules'
31. First, an issue of triable fact exists as to whether Defendant was

negligent in performing itsmanagement and maintenance obligations under the Laundry License

Agreement. Defendant Hercules contends that neither this provision nor its obligations to

manage and maintain the laundry equipment require "Hercules to monitor machines, but rather

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complaints,"
to respond in a timely manner to despite the machines being the exclusive property

of Defendant Hercules under the Laundry License Agreement. (See Def. Hercules Mot. at 17.).

32. However, the Laundry License Agreement also obligates Defendant Hercules to

provide preventative maintenance. (See Def. Mutual Ex. F. at 37) ("A Hercules technician will

stop at the Management Office daily to see if any additional service is needed."). In discharging

this obligation, a Hercules employee testified that he would only walk through the laundry room

looking for signs placed residents that a machine was out of order. See Def. Hercules Dep. at

page23-27. Had Defendant Hercules exercised reasonable care in discharging this obligation, it

should have preventatively examined the machines for possible worn, broken, or otherwise

defective parts or conditions with in its washing machines. Had it done so, it would have

detected and replaced the rusted portion of the door. Had itdone so, the hazardous condition may

not have been created and the Plaintiff may not have been injured. See Ugarriza v Schmieder, 46

N.Y.2d 471, 474, 386 N.E.2d 1324, 414 N.Y.S.2d 304 [1979]) ("[T]he very question of

negligence is itselfa question for jury determination.").

33. A second issue of triable fact exists to the credibility of the Plaintiff's testimony.

Defendant Hercules contends that the Plaintiff only speculates that the hazardous water condition

Hercules'
was created by one of Defendant machines. In support of its contention, Defendant

Hercules relies on Defendant Mutual's Aided Report (See Def. Hercules Ex. N), which

seemingly contradicts Plaintiff's deposition testimony that the puddle of water that caused her

Hercules'
slip and fall emanated from one of Defendant machines. (See Def. Hercules Mot. at

14). Defendant Hercules further supports its contention by stating Defendant Mutual's

employees reported no machines were leaking after the accident and that no further complaints

were received regarding the machine at issue.

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34. Such a contentions present issues of triable fact precluding the grant of summary

judgment. Indeed, courts have held that any inconsistencies in a plaintiff's testimony generally

present credibility issues for trial. (See Zavala v KRCM Realty Co., Inc., 2010 NY Slip Op

32384[U] 1, 6 [Sup. Ct. Nassau County 2010]) ("[C]ourts have held that any inconsistencies that

may exist between the deposition testimony of plaintiff and plaintiffs affidavit submitted in

opposition to the summary judgment motion generally present credibility issues for trial.);(see

also Knepka v. Tallman, 278 AD2d 811, 718 N.Y.S.2d 541 [4th Dept.2000]; (Yaziciyan v.

Blancato, 267 AD2d 152, 700 N.Y.S.2d 22 [1st Dept. 1999]). Accordingly, an issue of triable

fact exists as to credibility.

35. Finally, a third issue of triable fact exists as to extent of the Plaintiff's culpable

conduct ifany. Defendant Hercules speculatively asserts that Plaintiff may have overloaded the

machine causing the door to lock improperly resulting in water leaking on to the ground. This

presents an issue of triable fact for trier of fact to determine.

Hercules'
36. For these reasons, Defendant Motion for Summary Judgment as to the

Plaintiff must be denied.

II. Defendant Mutual Is Not Entitled To Summary Judgment Against The Plaintiff

37. Defendant Mutual has failed to show prima facie entitlement to summary

judgment against the Plaintiff. It is axiomatic that a landowner must maintain his property in a

reasonably safe condition, in view of all circumstances, including the likelihood of injury to

others, the seriousness of the injury, and the burden of the avoiding the risk. (See Peralta v.

Henriquez, 100 N.Y.2d 139, 144, 790 N.E.2d 1170, 760 N.Y.S.2d 741.) Accordingly, a

landowner will be liable for any defect or dangerous condition that the landowner creates or has

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actual or constructive notice of. (See Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 646

N.E.2d 795, 622 N.Y.S.2d 493).

38. In a slip-and-fall case, a defendant moving for summary judgment must tender

sufficient evidence showing that itdid not create the condition on which the plaintiff slipped and

did not have actual or constructive notice of that condition. (See Rogers v Bloomingdale's, Inc.,

117 AD3d 933, 985 NYS2d 731 [2014]); (see also Armijos v Vrettos Realty Corp., 106 AD3d

847, 965 NYS2d 536 [2013]). To constitute constructive notice, a dangerous condition need only

be apparent and exist for a sufficient length of time before the accident to permit the defendant to

discover and remedy it. (See Gordon v American Museum of Natural History, 67 N.Y.2d 836,

492 NE2d 774, 501 NYS2d 646 [1986]).

39. Sufficient evidence on

Case Info

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Arlene P Bluth Track Judge’s New Case

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Document Filed Date

June 04, 2019

Case Filing Date

May 05, 2017

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