Motion for Summary Adjudication in Mildred Villano v. Mutual Redevelopment Houses, Inc., Hercules Corp.| Trellis.Law

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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FILED: NEW YORK COUNTY CLERK 03/22/2019 02:35 PM INDEX NO. 154224/2017
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
_____________ X
MILDRED VILLANO, Index No.: 154224/2017

Plaintiff, A__FFIRMATION IN
against- PARTIAL OPPOSITION TO
MUTUALREDEVELOPMENT
MUTUAL RE-DEVELOPMENT HOUSES, INC. and HOUSES, INC.'S MOTION
HERCULES CORP., FOR SUMMARY JUDGMENT

Defendants,
---------- ---------------------
-X
. . ....... . . ..Brian J. Dalton, an admitted to practice before the Courts of the
attorney duly

State of New York, hereby affirms the following under penalties of perjury:

1. I am associated with the law offices of CARTAFALSA, TURPIN &

LENOFF attorneys for the Defendant HERCULES CORP. (hereinafter, "HERCULES") in

the above-captioned matter and as such I am familiar with the facts and circumstances

of this matter by virtue of the contents of the fileas maintained by my office.

2. I submit this Affirmation in Partial Opposition to Co-Defendant MUTUAL

REDEVELOPMENT HOUSES, INC.'s (hereinafter, "MUTUAL") currently pending

motion for summary judgnient.

3. HERCULES does not oppose that portion of MUTUAL's motion that seeks

summary judgment dismissing the plaintiff's clairns against them. Indeed, HERCULES

is for judgment Plaintiff's claims and all cross-
separately moving summary dismissing

claims against HERCULES on similar grounds.

4. However, HERCULES strenuously opposes the motion insofar as itseeks

summary judgment on MUTUAL's claims for defense, indemrtification and breach of

duty to procure and maintain insurance from HERCULES. Specifically, HERCULES

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opposes the portion of MUTUAL's motion that seeks summary judgment "in favor of

Mutual against defendant, HERCULES CORP. on their cross claims asserted as

against defendant HERCULES CORP. for contractual indemnification, for their

breach of contract, for failure to procure insurance, to reimburse defendant MUTUAL

REDEVELOPMENT HOUSES, INC. for defense costs, provide a defense for defendant
. .

MUTUAL REDEVELOPMENT HOUSES, INC. and for pre-judgment common law

indemnification, and for such other and further relief as this Court deems necessary and

. . .proper

5. As will be shown below, MUTUAL has utterly failed to establish its prima

facie entitlement to such relief and moreover, the evidence establishes that, to the

HERCULES is entitled to judgment all claims -
contrary, summary dismissing including

MUTUAL's cross-claims - against it.

PROCEDURAL HISTORY

6. The procedural history of this matter is as set forth in the Affirmation of

Roy Itzkowitz, Esq., in support of Co-Defendant MUTUAL's currently pending Motion for

Summary Judgment (the "Itzkowitz Affirmation"), and the exhibits annexed thereto.

FACTS

7. As set forth in MUTUAL's moving papers, in the pleadings and in Plaintiff's

Bill of Particulars annexed as exhibits thereto, this is an actiori for personal injuries

resulting from an accident that allegedly occurred on June 27, 2015 between 4:00 pm

24*
and 5:00 pm, at 311 West Street, New York, New York, in the common laundry

room of that premises. Plaintiff alleges that she slipped on water at that time and place.

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Testimony of Plain_tjiff MILDRED VILLANO

8. The transcript of Plaintiff's February 6, 2018 E.B.T. is annexed to the

"I"
Itzkowitz Affirmation as Exhibit thereto.

9. At the time of the accident, Plaintiff had been in the laundry room for ten to

"I"
fifteen minutes and had just put her wash in (Exhibit to the Itzkowitz Affirmation

[hereinafter usually referred to simply as "Exhibit "I""], Page 18). Plaintiff ut!!!zes the

common laundry room every other week (Id., Page 28).

10. There are three sizes of machines in the laundry-room (Id. Page-
washing

20). They are front-loading machines. (Id. Page 39).

11. On the day of the accident Plaintiff had performed her normal routine of

bringing her laundry cart over to the machines, loading them and then moving her cart

away and returning to the machines to put the detergent in and starting the wash

(Exhibit "I"; Pages 28-29). She used one large machine, #267, and two smaller

machines. (Id. Pages 21-22; 79-80; 94; 124). She locked the machine herself. (ld.

Pages 39; 83-84; 88; 110).

12. Plaintiff testified that she was In the laundry room for a short period of time

before the accident occurred. (Exhibit "I", Page 18, Lines 5-8) The machine had been

filling with water for two minutes at the time of the accident (Exhibit "I"; Pages 39-40).

When she loaded the machine, she did not observe any water coming out after she

closed its front door. (Exhibit "l"; Pages 39-40).

13. The lighting in the laundry room was described by the plaintiff as normal

and that within seccñds of the accident there were no obstructions to her vision which

prevented her from seeing in front of her. (Exhibit "l";Pages 19-25).

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14. Plaintiff could not recall where she was looking or what she observed

immediately before the accident (Exhibit "I"; Page 30). She did not observe any water or

liquid on the floor prior to the accident and did not observe any water coming out of the

friachines. (Exhibit "I"; Pages 30-31). On previous occasions, when using the machine,

she had not seen water seeping from it(Exhibit "l"; Page 37).

15. When the accident occurred, which is depicted on video from the

surveillance system operated by Mutual (copy annexed to the Itzkowitz Affirmation as

''J'
. .. Exhibit the plaintiff to return upstairs to her apartment as she
thereto) was-intending

knew that she had time before the machines would finish.

16. Plaintiff claims that after the accident, and while she was on the ground,

she observed that there was water coming out from the door of the washing machine

that she was using. She further stated that itlooked like the water was seeping from

where the door was ci0sed, not out the window. (Exhibit "I", Pages 35; 38-39).

17. Plaintiff states that she had taken four to five steps from machine number

267 when she fell to the ground. (Exhibit "I", Page 32) yet she described the dimensions

of the water on the floor as being only two feet by two feet. (Exhibit "I",Page 43).

18. Plaintiff admits that prior to the accident she never made any complaints

to MUTUAL or else - HERCULES - about the machines and
anybody including any

water seeping out of them. (Exhibit "I";Pages 37-38).

19. The last time Plaintiff had used that machine before the day of that

before"
accident was "[p]robably a week-and-a-half and at that time, she did not have

any difficulty at all with the machine. (Id. Page 84). Plaintiff has used the same machine

subsequent to her accident and never had a problem with water coming out of it.(Id.

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Page 96).

20. She admitted that when she shut the door and locked it,she did not notice

it to be loose or bent or damaged in any way nor did she observe any cracks in the

glass of the window. (ld. Page 88).

21. Plaintiff admitted that she did not make any complaints to that person

about the conditi0ri of the machines when anyone from HERCULES personnel would be

in the laundry room, because she had no complaints (Exhibit "I"; Page 72). Plaintiff did

.. .. not see anybody-from HERCULES there at the-time of the accident because-it-was a -

Saturday (Exhibit "l"; Page 42).

Testimony of Lev Makogon [HERCULES1

22. On May 18, 2018 Lev Makogon appeared and testified on behalf of

HERCULES. A copy of his deposition transcript is annexed to the ltzkowitz Affirmation

"K"
as Exhibit thereto.

23. Mr. Makogon has been employed with HERCULES as a service

"K"
technician .since 1995 (Exhibit to the Itzkowitz Affirmation [hereinafter usually

referred to simply as "Exhibit "K""], Page 9) and his duties and responsibilities as a

service technician include repairs to washing machines and dryers (Exhibit "K", Pages

10-11). Before June 2015, he could not remember if he received a complaint about

washing machine number 267 (Exhibit "K"; Page 36).

24. Mr. Makogon has been servicing the machines at 311 West 24th Street for

14 years (Exhibit "K", Page 14). Maintenance is done when there is a complaint made

(Exhibit "K", Page 14). To make a complaint, residents can use what is called the

"Hercules Smart Center", located in the laundry room. This consists of a computer in the

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middle of the laundry room on the wall. The computer is used for the people who have a

problem with a machine to report the problem to HERCULES by entering the number of

the machine on the touch pad. This sends an e-mail directly to the company and a

technician is then dispatched. (Exhibit "K"; Page 16)

25. Mr. Makogon worked Monday to Friday, 8:00AM to 5:00PM (Exhibit "K";

Page 24), and he was not aware that someone had fallen in the laundry room of 311

24th
West Street (Exhibit "K"; Pages 35-36). He is the primary service techñician for that

. . development (ld Page 49). -

"L"
26. A search was made of HERCULES's records (See Exhibit to the

Itzkowitz Affirmation, marked as Plaintiff's Exhibit 2 at Mr. Makogon's E.B.T.) and they

noted only one complaint for machine number 267 between January 1, 2015 and July 1,

14*
2015. That complaint was made on February [2015] and was fixed on February

17*
HERCULES had no records identifying a problem with machiñe number 267

leaking on or around the date of the accident, June 27, 2015. The only reported leak

complaint was four (4) months earlier. (Exhibit "K", Page 37, Lines 21-25; Exhibit "L").

27. Mr. Makogon noted that the typical ways machines leak are due to

customers overloading the machines. Sometimes this causes a piece of clothing to get

stuck between the door and the machine. The door is able to close, and the washing

machine could start but may leak. (Exhibit "K", Pages 44-45, 47). There are no other

instances where the door is not properly closed to the machine, yet the machine can still

operate. (Exhibit "K", Page 53).

28. If he saw water near a niachine while he was there servicing another

machine he would look to see where the water source was coming from. (Exhibit "K",

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Page 54). To test a machine, he would actually do a full cycle where the water goes in.

There's no shortcut. He would watch itoperate, and then look to see ifthere was water

on the floor. (ld. Pages 54-55).

29. When he went to service a particular machine, if he saw another machine

such as one that might have had a rag, he would check that machine while he was

there as well,3 If there was something wrong with the machine he would have

documented itand ifthere was nothing wrong with that machine he would not document

-it.-(ld-Page-57). -- - -- - - - -

"L"
30. Annexed to the Itzkowitz affirmation as Exhibit thereto are documents,

including a six-page document that was shown to Mr. Makogon and marked at his

E.B.T. as Exhibit 1 of the date of Mr. Makogon's E.B.T. Itis identified by Mr. Itzkowitz as

HERCULES's records. Mr. Makogon identified the information on the document as

showing the address in the first column; the HERCULES machine number in the second

column; the number of the machine on the front of the machine in the third column; the

date of the complaint in the next column; the date machine was fixed in the next

column; the description of the problem in the next column; the computer code

description in the next column and the Resolution description in the next column.

Notably, the records show no problems or complaints whatsoever regarding the

machine at issue, #267 in the entire month of June 2015, including subsequent to

"K" "L"
Plaintiff's accident. (Exhibit to the Itzkowitz affirmation, Pages 31-34; Exhibit to

the Itzkowitz affirmation). Further, Mr. Makogon does not remember ever receiving

complaints from anybody in the maintenance department at Mutual Redevelopment

Houses within a period of six months prior to June 27, 2015 regarding leaking machines

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in 321 West 24111 Street (Exhibit "K"; Page 61).

Testimony of John Seemer [MUTUA.L_[

31. On March 29, 2018 John Seemer appeared and testified on behalf of

Defendant MUTUAL. A copy of his deposition transcript is annexed to the Itzkowitz

"M"
Affirmation as Exhibit thereto-

32. Mr. Seemer has been employed as maintenance manager for eight years

with MUTUAL and his duties and his responsip! ties are to oversee staff and work on

. . . .. projects He manages-the premises at 312 West- 25th Street and oversees -a-staff of

"M"
three supervisors. (Exhibit to the Itzkowitz Affirmation [hereinafter generally referred

to simply as Exhibit "M"; Pages 10; 15).

33. Porters inspect the laundry room at least twice a day, once in the morning

and once in the afternoon. (Exhibit "M, Pages 36-37).

34. The building actually consists of two buildings with a common lobby, but

there is only one laundry to service both of them which would be used by over 300

tenants or "cooperators". (ld. Pages 23; 32; 34-35). .

35. There was a card operating machine in the room as well as a touchscreen

that allows somebody to contact HERCULES directly to let them know if there was a

problem with a machine in the laundry room. (Exhibit "M"; Pages 41-42).

36. No records are kept of any particular spills or any other small maintenance

jobs needed in the laundry room. (Id. Page 25). Tenants also complained directly to the

security of the building- (Id. Page 41).

37. He never personally observed any machines leaking in the laundry room.

(Exhibit "M"; Page 49). He is aware of no other accidents in the laundry room involving

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slips and falls. (ld.) The laundry room has surveillance that is monitored by MUTUAL at

all times. (Id. Page 52).

38. He does not have any documents indicating the last time that the laundry

was inspected by MUTUAL prior to the incident. (1d. Page 67).

39. He is not aware of any MUTUAL employees, at any time having contacted

HERCULES regarding any con plaints or issues concerning that particular machine. (ld.

Page 62)

40 At --his--deposition Mr -Seemer identified -a--documente-marked for- -

2"
identification as "Plaintifis Exhibit as an aided report from MUTUAL's security. A copy

of that report is annexed hereto as Exhibit "1". The MUTUAL aided report stated:

AT T/P/0, MILDRED VILLANO, SLIPPED ON WATER THAT WAS
ON THE LAUNDRY ROOM FLOOR. SHE FELL BACKWARDS
ONTO THE FLOOR. SHE STATED THAT SHE FELT PAIN IN HER
LEFT ELBOW AND THE LOWER LEFT SIDE OF HER BACK. AN
UNIDENTIFIED COOPERATOR HELPED HER STAND UP. THEY
THEN CALLED C.C.T.V. USING THE LAUNDRY INTERCOM AND
REPORTED THE WATER ON THE FLOOR. AT 1532 HRS, MS.
VILLANO WENT TO THE SECURITY OFFICE TO MAKE A
REPORT. SHE STATED SHE DID NOT NOTICE WATER ON THE
FLOOR BEFORE SHE SLIPPED. SHE STATED SHE BELIEVED
THE WATER CAME FROM ONE OF THE MACHINES SHE WAS
USING BUT WAS NOT SURE. SHE REFUSED MEDICAL
ATTENTION. AT 1533 HRS, PORTER ELVIDO OZORIO
RESPONDED TO THE LAUNDRY ROOM AND MOPPED UP THE
WATER. HE STATED IT WAS NOT A LOT OF WATER. fjg
STATED HE_DID_.NOT SEE ANY OE _THE MACHINES LEAKING
WATER. HE STATED IT IS POSSIBLE ONE OF THE WASHING
MACHINE _ DOORS WERE NOT CLOSED PROPERLY DURING
WASHING AND ALLOWED WATER TO LEAK OUT. AT 1730

HOURS, SGT. SABAS INSPECTED THE FLOOR AND SAWTHAT
IT WAS DRY AND NO MACHINES WERE LEAKING.
[Emphasis added]
The Laundry License Aareement

41. Defendant HERCULES had a Laundry License Agreement with Mutual to

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supply, service and maintain washing machines and dryers in the common laundry

room. A copy of the Laundry License Agreement is annexed to the Itzkowitz Affirmation

"F"
as Exhibit thereto.

42. Section 5(d) of the Agreement sets forth the indemnification duty as

follows:

(d) Without in any manner limiting the application of any other
provision hereof, and to the fullest extent permitted by law,
Contractor indemnifies and holds harmless the Housing Company
and its officers, directors, shareholders, agents (including its
and-employees: from and against and all -
Managing Agent) (i) any
claim, loss, damage or liability arising out of or in connection with (A)
the negligence or willful misconduct of Contractor or its agents,
employees or subcontractors or (B) the breach by Contractor of

any provision of this Agreement or (C) the injury or death of any
employee of Contractor or of any subcontractor of Contractor

occurring in the course of such person's employment; and (ii) from
and against any and all costs, expenses and fees, including
attorneys'
reasonable fees and disbursements, arising out of or in

connection with any such claim, loss, damage or liability,or incurred
in enforcing the Agreement or any right of Housing Company or in

defending any claim or suit arising out of or in connection with the

Agreement, except and to the extent the same is directly due to the

willful misconduct of the Housing Company or any of its agents or

employees subject to the limitations on the Housing Company's

liability set forth in this Agreement. The foregoing indemnity shall
survive the expiration or earlier termination of this Agreement.

[Emphasis added]

43. The Agreement further states in regard to defense of claims:

.. . . . 23 Defense of ClaimsJn the event any claim is made or any action,
suit or proceedings instituted against the Housing Company w_ith

respect to which Contractor has indemnified the Housina

Company hereunder then, upon the request of the Housing
Company, Contractor shall defend such action, suit or proceeding at
the sole cost and expense of Contractor utilizing legal counsel

reasonably satisfactory to the Housing Company, Experienced and
reputable legal counsel designated by Contractor's insurer shall not

require the Housing Company's consent.

[Emphasis added]

44. Thus, pursuant to the Agreement, HERCULES is only liable for

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indemnifying MUTUAL for accidents arising from HERCULES's "negligence or willful

misconduct", HERCULES's breach of the Agreement or injury or death of any employee

of Contractor or of any subcontractor of Contractor. Similarly, by the terms of the

Agreement, the defense duty is only triggered by the same conditions. The evidence

and testimony in this matter clearly reveals that the accident at issue did not arise from

any of the foregoing conditions.

45. Further, MUTUAL has failed to show that HERCULES failed to procure

.. and-maintain insurance as the AgreementrlndeedrHERCULES's insurance ----
required-by

"P"
policy, annexed to the Itzkowitz Affirmation as Exhibit thereto and Endorsement CG

"Q"
20 1 0 04 13 (Exhibit to the Itzkowitz Affirmation) provides for additional insured

coverage as required by a contract thus clearly fulfilling HERCULES's duties regarding

insurance under the Agreement. As such, even assuming atguendo, that any

conceivable interpretation of the facts and law of this matter could find that MUTUAL is

entitled to insurance coverage under the Agreement, MUTUAL's remedy would be

against the insurance carrier, not HERCULES.

46. As the facts of this matter - as set forth MUTUAL itself - and the
by

applicable law establish, the foregoing conditions for indemnification, defense and

insurance coverage simply do not apply to the instant matter and as such the portion of

MUTUAL's motion seeking indemnification, defense and insurance coverage from

HERCULES should be denied. Moreover, HERCULES should be granted summary

judgment dismissing all claims against HERCULES including MUTUAL's cross-claims

against HERCULES.

47. Based upon all of the above testimony and evidence, it isclear that there

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is therefore no factual basis for finding that HERCULES was negligent in this matter nor

was HERCULES in breach of the Agreement. As such, the portion of MUTUAL's motion

seeking relief against HERCULES should be denied.

ARGUMENT

THE SUMMARY JUDGMENT STANDARD

The standard for summary judgment in New York is well established:

"To obtain summary judgment it is necessary that the movant
. establish his cause of to warrant-the
action-or-defensePsufficiently
judgment'
court as a matter of law in directing in his favor (CPLR
3212, subd. (b)), and he must do so by tender of evidentiary proof in
form."
admissible

Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980) (emphasis added).

In order to establish prima facie entitlement to summary judgment a party must

show, by adrñissible evidence, that there is no material issue of fact to be tried, and that

judgment may be directed as a matter of law. Peoole ex rel. Cuomo v. Greenberg, 95

A.D.3d 474, 483 (1st Dept. 2012), quoting Brill v. City of New York, 2 N.Y.3d 648, 651

(2004).

Summary judgment is "a drastic remedy"-depriving the parties of a trial, and as

such, should only be granted where there is no doubt as to the existence of a triable

issue of fact. People ex rel. Cuomo, supra, 95 A.D.3d at 483, citing Glick & Dolleck v.

Tri-Pac Export Corp., 22 N.Y.2d 439, 441 (1968); see also Asabor v. Archdiocese of

(1st
New York, 102 A.D.3d 524, 527 Dept. 2013). The function of a court in reviewing

such a motion is issue finding, not issue determination, and ifany genuine issue of

material fact is found to exist, summary judgment must be denied. Peoole ex rel.

Cuomo, supra, 95 A.D.3d at 483, citing Phillips v. Kantor & Co.. 31 N.Y.2d 307, 311

(1972).

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All of the evidence submitted on a motion for summary judgment must be

construed in the light most favorable to the opponent of the motion. People ex rel.

Cuomo, supra, 95 A.D.3d at 484; citing Branham v. Loews Orpheum Cinemas. Inc., 8

N.Y.3d 931 (2007).

POINTI

NO NEGLIGENCE ORBREACHHAS BEEN OR CANBE SHOWN
ONTHEPARTOFHERCULES

The portion of Defendants MUTUAL's Motion for Summary Judgment seeking

relief against HERCULES should be denied. HERCULES did not owe or breach any

relevant duty to Plaintiff and therefore, no negligence has been or can be shown on the

part of HERCULES. There is simply no evidence that would support liability on the part

of HERCULES in this matter.

As set forth above, in order for the contractual indemnification duty to be

"triggered"
MUTUAL would need to show that the incident at issue arose from

HERCULES's "negligence or willful misconduct", HERCULES's breach of the

Agreement or injury or death of any employee of Contractor or of any subcontractor of

Contractor. Similarly, by the terms of the Agreement, the defense duty is only triggered

by the same conditions.

.._There..is simply no-evidence.that HERC.ULES either-created or.had notice-of the

allegedly hazardous condition or that it in any other way arose from any "negligence or

misconduct"
willful on the part of HERCULES. There is likewise no evidence that there

was any breach of any contractual duty on the part of HERCULES and moreover, no

evidence that any theoretical breach proximately caused the Plaintiff's accident. Finally,

the incident clearly did not involve any injury or death of any employee of Contractor or

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of any subcontractor of Contractor. As such, none of the triggering conditions exist in

this matter.

The first inquiry must be whether HERCULES was negligent, or even owed any

relevant

Case Info

Judge

Arlene P Bluth Track Judge’s New Case

Case No.

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Document Filed Date

March 22, 2019

Case Filing Date

May 05, 2017

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

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