        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

585
CA 13-00013
PRESENT: SCUDDER, P.J., SMITH, CENTRA, AND LINDLEY, JJ.


ROBERT M. PAYTON, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

5391 TRANSIT ROAD, LLC, AND CARROLS
CORPORATION, DEFENDANTS-APPELLANTS.
---------------------------------------
CARROLS, LLC, A WHOLLY OWNED SUBSIDIARY
OF CARROLS CORPORATION, THIRD-PARTY
PLAINTIFF-RESPONDENT-APPELLANT,

                    V

JOSEPH H. TUDOR, DOING BUSINESS AS JM
ENTERPRISES, THIRD-PARTY
DEFENDANT-APPELLANT-RESPONDENT.


SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (KAREN KROGMAN OF
COUNSEL), FOR DEFENDANTS-APPELLANTS AND THIRD-PARTY PLAINTIFF-
RESPONDENT-APPELLANT.

BARTH SULLIVAN BEHR, BUFFALO (LAURENCE D. BEHR OF COUNSEL), FOR
THIRD-PARTY DEFENDANT-APPELLANT-RESPONDENT.

JUSTIN S. WHITE, WILLIAMSVILLE, FOR PLAINTIFF-RESPONDENT.


     Appeals from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered October 9, 2012. The order denied the motion of
third-party defendant for summary judgment and the motion of
defendants and third-party plaintiff for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained when he slipped and fell in a parking lot of a
Burger King restaurant operated by defendant Carrols Corporation. The
parking lot was on property owned by defendant 5391 Transit Road, LLC.
Third-party defendant, who was hired to perform snowplowing services
for the parking lot, moved for summary judgment dismissing the third-
party complaint seeking contractual indemnification, and defendants
and third-party plaintiff moved for summary judgment dismissing the
complaint and for a conditional order of indemnification against
third-party defendant. Supreme Court properly denied the motions.
                                  -2-                          585
                                                         CA 13-00013

     Addressing first the motion of defendants and third-party
plaintiff, we note that it is well settled that a property owner has
“a duty to keep the property in a ‘reasonably safe condition in view
of all the circumstances, including the likelihood of injury to
others, the seriousness of the injury, and the burden of avoiding the
risk’ ” (Sweeney v Lopez, 16 AD3d 1174, 1175, quoting Basso v
Miller, 40 NY2d 233, 241). In addition, “ ‘[a] property owner is not
liable for an alleged hazard on [its] property involving snow or ice
unless [it] created the defect, or had actual or constructive notice
of its existence’ ” (id.). We conclude that defendants and third-
party plaintiff failed to meet their initial burden of establishing
that defendants either did not create the dangerous condition or did
not have actual or constructive notice of it and thus failed to
establish their entitlement to summary judgment dismissing the
complaint. Plaintiff alleged that the dangerous condition consisted
of a mound of snow in the first parking space next to the front
entrance, which plaintiff climbed over to reach his vehicle parked in
the second parking space. The deposition testimony of plaintiff, the
restaurant manager, and third-party defendant raised a triable issue
of fact whether the snow mound was created by third-party defendant’s
removal of snow from the parking lot, by defendants’ removal of snow
from the sidewalk, or both, and whether defendants were aware of the
dangerous condition (see generally Frank v CPG Partners, L.P., 96 AD3d
900, 901; Rotella v Wegmans Food Mkts., 289 AD2d 1014, 1014; Giamboi v
Manor House Owners Corp., 277 AD2d 201, 202).

     We further conclude that the court properly denied both motions
with respect to contractual indemnification inasmuch as there is a
triable issue of fact whether third-party defendant was negligent in
the performance of the snow removal contract (see Mesler v PODD LLC,
89 AD3d 1533, 1535; Trzaska v Allied Frozen Stor., Inc., 77 AD3d 1291,
1292-1293; Walter v United Parcel Serv., Inc., 56 AD3d 1187, 1188).

      Finally, we reject third-party defendant’s contention that the
indemnification agreement is ambiguous and therefore unenforceable
(see generally Rodrigues v N & S Bldg. Contrs., Inc., 5 NY3d 427,
433).




Entered:   June 7, 2013                         Frances E. Cafarell
                                                Clerk of the Court
