         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1067
CA 12-00500
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, AND MARTOCHE, JJ.


DEIDRE SNIATECKI, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

VIOLET REALTY, INCORPORATED AND MAIN PLACE
LIBERTY GROUP, LLG, DEFENDANTS-APPELLANTS.
-------------------------------------------
VIOLET REALTY, INCORPORATED AND MAIN PLACE
LIBERTY GROUP, LLG, THIRD-PARTY
PLAINTIFFS-APPELLANTS-RESPONDENTS,

                    V

L. FANARA’S PLUMBING & HEATING, INC.,
THIRD-PARTY DEFENDANT-RESPONDENT-APPELLANT,
ROY’S PLUMBING, INC., THIRD-PARTY
DEFENDANT-RESPONDENT.


BROWN & KELLY, LLP, BUFFALO (KENNETH KRAJEWSKI OF COUNSEL), FOR
DEFENDANTS-APPELLANTS AND THIRD-PARTY PLAINTIFFS-APPELLANTS-
RESPONDENTS.

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (JOSHUA M. HENRY OF COUNSEL),
FOR THIRD-PARTY DEFENDANT-RESPONDENT-APPELLANT.

GOLDBERG SEGALLA LLP, BUFFALO (DENNIS GLASCOTT OF COUNSEL), FOR
THIRD-PARTY DEFENDANT-RESPONDENT.

LAW OFFICE OF JOSEPH A. ABLES, JR., ORCHARD PARK (NORMAN E.S. GREENE
OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal and cross appeal from an order of the Supreme Court, Erie
County (Timothy J. Walker, A.J.), entered September 9, 2011. The
order, among other things, denied the cross motion of defendants for
summary judgment dismissing plaintiff’s complaint and denied the
motion of third-party defendant L. Fanara’s Plumbing & Heating, Inc.
for summary judgment dismissing the third-party complaint against it.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motion of third-party
defendant L. Fanara’s Plumbing & Heating, Inc. and dismissing the
third-party complaint and all cross claims against it and by granting
that part of the cross motion of defendants for summary judgment
dismissing the complaint, as amplified by the bill of particulars,
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                                                         CA 12-00500

insofar as it alleges that defendants were negligent in failing to
warn plaintiff of the dangerous condition at issue and dismissing the
complaint to that extent and as modified the order is affirmed without
costs.

     Memorandum: Defendants-third-party plaintiffs, Violet Realty,
Incorporated and Main Place Liberty Group, LLG (hereafter,
defendants), appeal and third-party defendant L. Fanara’s Plumbing &
Heating, Inc. (Fanara’s) cross-appeals from an order that, inter alia,
denied Fanara’s motion for summary judgment dismissing the third-party
complaint and all cross claims against it, denied defendants’ cross
motion for summary judgment dismissing the complaint against them and
granted the cross motion of third-party defendant Roy’s Plumbing, Inc.
(Roy’s Plumbing) for summary judgment dismissing the third-party
complaint and all cross claims against it. We conclude that Supreme
Court properly granted the cross motion of Roy’s Plumbing, but that
the court erred in denying Fanara’s motion and in denying that part of
defendants’ cross motion for summary judgment dismissing the
complaint, as amplified by the bill of particulars, insofar as it
alleges that defendants were negligent in failing to warn plaintiff of
the dangerous condition at issue. We therefore modify the order
accordingly.

     Plaintiff commenced this action to recover damages for injuries
she sustained when she fell on the wet kitchen floor of a food stand
area located on property owned by defendants. At the time of the
incident, plaintiff was working for her employer, who had leased the
food stand area, including the kitchen area, from defendants. It is
undisputed that the kitchen floor was wet because two floor drains in
the kitchen had begun backing up the day before plaintiff’s accident,
causing water to pool on the kitchen floor. In her bill of
particulars, plaintiff contended, among other things, that defendants
were negligent in failing to maintain the premises in a safe and
suitable condition; in failing to repair the plumbing to prevent the
clog; in allowing access to an unsafe area; in failing to properly
supervise the area of the dangerous condition; and in failing to warn
plaintiff of the dangerous condition. Defendants subsequently
commenced a third-party action against Fanara’s, a contractor hired by
defendants to repair the clogged drains, and Roy’s Plumbing, a
contractor hired by Fanara’s after Fanara’s was unable to repair the
clogged drains. Ultimately, employees of Roy’s Plumbing were able to
resolve the problem by flushing the piping from two separate access
points.

     Addressing first the cross motion of defendants, we conclude that
they were not entitled to summary judgment dismissing the complaint in
its entirety against them. “A landowner is liable for a dangerous or
defective condition on his or her property when the landowner ‘created
the condition or had actual or constructive notice of it and a
reasonable time within which to remedy it’ ” (Anderson v Weinberg, 70
AD3d 1438, 1439; see Pommerenck v Nason, 79 AD3d 1716, 1716).
Defendants failed to establish that they cleaned the pipes at any time
between February 2004 and December 28, 2004, the date on which the
drains became clogged. It is undisputed that, in a January 2004
                                 -3-                          1067
                                                         CA 12-00500

proposal for flushing the pipes, defendants’ head of maintenance had
written a note to the employee in charge of sewer lines asking him to
“Pls. arrange for the sewer to be cleaned every 6 mos.” We thus
conclude that there is a triable issue of fact whether defendants
created the dangerous condition by negligently maintaining the pipes
(see Reimold v Walden Terrace, Inc., 85 AD3d 1144, 1145-1146; cf. Chi-
Ming Tang v Village of Geneseo, 303 AD2d 987, 987). We note in any
event that, although it is undisputed that defendants acted promptly
to remedy the condition, “ ‘[e]ven where the relevant facts are
uncontested, summary judgment is rarely appropriate in negligence
cases, inasmuch as the issue of whether the defendant . . . acted
reasonably under the circumstances can rarely be resolved as a matter
of law’ ” (Rubin v Reality Fashions, 229 AD2d 1026, 1027; see
generally Andre v Pomeroy, 35 NY2d 361, 364).

     Defendants correctly contend that the violation of their own
internal policy would not constitute evidence that they were negligent
if their internal policy “require[s] a standard that transcends
reasonable care” (Gilson v Metropolitan Opera, 5 NY3d 574, 577; see
Lesser v Manhattan & Bronx Surface Tr. Operating Auth., 157 AD2d 352,
356, order amended 176 AD2d 463, affd sub nom. Fishman v Manhattan &
Bronx Surface Tr. Operating Auth., 79 NY2d 1031, rearg denied 80 NY2d
893). Inasmuch as flushing or cleaning of the pipes is “part of the
service that [defendants] provide[] and for which [they are]
responsible” (Haber v Cross County Hosp., 37 NY2d 888, 889), we
conclude that it is for the jury to determine whether “observance of
[the internal policy] fell within the orbit of what is required by
reasonable care” (Danbois v New York Cent. R.R. Co., 12 NY2d 234, 240;
see Juiditta v Bethlehem Steel Corp., 75 AD2d 126, 135-136).

     Defendants also correctly contend that they have no duty to warn
of a dangerous condition that is open and obvious (see Tagle v Jakob,
97 NY2d 165, 169; Koval v Markley, 93 AD3d 1171, 1172; Mazurek v Home
Depot U.S.A., 303 AD2d 960, 962). Although the issue whether a
dangerous condition is open and obvious is generally one of fact for a
jury, courts “may determine that a risk was open and obvious as a
matter of law when the established facts compel that conclusion”
(Tagle, 97 NY2d at 169). The facts of this case compel such a
conclusion. Defendants established as a matter of law that the
dangerous condition was open and obvious and that plaintiff “fully
appreciated the danger [the wet floor] presented” (Duclos v County of
Monroe, 258 AD2d 925, 926). Inasmuch as “a plaintiff’s theory of
negligence based upon the claim that the property owner violated its
duty to warn of the claimed hazard may be dismissed upon a
demonstration that the hazard was open and obvious” (Westbrook v WR
Activities-Cabrera Mkts., 5 AD3d 69, 71), the court should have
granted that part of defendants’ cross motion for summary judgment
dismissing the complaint, as amplified by the bill of particulars,
insofar as it alleges that defendants were negligent in failing to
warn plaintiff of the dangerous condition.

     We further conclude, however, that defendants failed to establish
as a matter of law that plaintiff’s conduct was the sole proximate
                                 -4-                          1067
                                                         CA 12-00500

cause of her fall (see Mooney v Petro, Inc., 51 AD3d 746, 747), and
thus that defendants are not entitled to summary judgment dismissing
the complaint in its entirety on that additional ground. “[U]nder the
circumstances presented, it cannot be said that plaintiff’s conduct in
[walking across the wet floor] was unforeseeable . . . [and rose] to
such a level of culpability as to replace [defendants’] negligence as
the legal cause of the accident” (Oliver v Tanning Bed, Inc., 50 AD3d
1259, 1261-1262 [internal quotation marks omitted]; cf. Tkeshelashvili
v State of New York, 18 NY3d 199, 205-207). We also conclude that
defendants failed to establish as a matter of law that they lacked any
authority to prohibit plaintiff or others from being present in the
kitchen on the day of plaintiff’s accident, and we therefore conclude
that they are not entitled to summary judgment dismissing the
complaint, as amplified by the bill of particulars, insofar as it
alleges that defendants were negligent in permitting access to the
kitchen area.

     With respect to the motion of Fanara’s and the cross motion of
Roy’s Plumbing, we note that there were no written contracts requiring
them to indemnify defendants or to procure insurance in favor of
defendants. Thus, we conclude that they established their entitlement
to summary judgment dismissing the contractual indemnification and
breach of contract causes of action in the third-party complaint. We
also conclude that they established their entitlement to summary
judgment dismissing the causes of action for common-law
indemnification in the third-party complaint inasmuch as they both
established as a matter of law that “plaintiff’s accident was not
attributable to [their] negligent performance or nonperformance of an
act solely within [their] province” (Bermingham v Peter, Sr. & Mary L.
Liberatore Family Ltd. Partnership, 94 AD3d 1424, 1425; see Littleton
v Amberland Owners, Inc., 94 AD3d 953, 953-954; cf. Trzaska v Allied
Frozen Stor., Inc., 77 AD3d 1291, 1293). Defendants failed to raise a
triable issue of fact with respect to any of those causes of action in
the third-party complaint.

     Finally, we conclude that Fanara’s and Roy’s Plumbing established
their entitlement to summary judgment dismissing the remaining causes
of action in the third-party complaint, which sought common-law
contribution. It is well established that there are “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” (Espinal v Melville Snow Contrs., 98 NY2d 136, 140; see
Anderson v Jefferson-Utica Group, Inc., 26 AD3d 760, 760-761).
Because there are no allegations in the pleadings that would establish
the applicability of any of the three exceptions set forth in Espinal,
Fanara’s and Roy’s Plumbing, “in establishing [their] prima facie
entitlement to judgment as a matter of law, [were] ‘not required to
negate the possible applicability of any of [those] exceptions’ ”
                                 -5-                          1067
                                                         CA 12-00500

(Brathwaite v New York City Hous. Auth., 92 AD3d 821, 824, lv denied
19 NY3d 804). In any event, we conclude that Fanara’s and Roy’s
Plumbing established that none of the exceptions applies. They
established as a matter of law that they did not launch a force or
instrument of harm by creating or exacerbating a dangerous condition
(see Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d 253, 257;
Achtziger v Merz Metal & Mach. Corp., 27 AD3d 1137, 1138; Anderson, 26
AD3d at 761); that plaintiff did not detrimentally rely on their
continued performance of any repairs (see Vushaj v Insignia
Residential Group, Inc., 50 AD3d 393, 394; Anderson, 26 AD3d at 761);
and that the oral plumbing repair contracts at issue in this case were
“not so comprehensive and exclusive that [they] ‘entirely displaced
[defendants’] duty to maintain the premises safely’ ” (Anderson, 26
AD3d at 761, quoting Espinal, 98 NY2d at 140; see Bermingham, 94 AD3d
at 1425).




Entered:   September 28, 2012                  Frances E. Cafarell
                                               Clerk of the Court
