Hughey v. RHM-88, LLCHughey v. RHM-88, LLC
The court correctly held that plaintiffs were not required to file a notice of claim prior to suing UNPC. Unlike defendant United Nations Development Corporation (UNDC), UNPC is not a public benefit corporation entitled to notice under
Nor is there any merit to UNPC’s alternative arguments: (1) that plaintiffs’ complaint against it should have been dismissed because it delegated full responsibility for the two forces that allegedly caused this injury—maintenance and repair of the canopy and gutter, and removal of snow and ice from the sidewalks—to C&W and Pritchard, respectively, thus precluding a charge of constructive notice of any allegedly dangerous condition created as a result of these other entities’ failures to fulfill the requirements of their contracts; (2) that in any event, it is the UNPC Board, not UNPC, that has control over and responsibility for the common areas. UNPC and its Board are one and the same for purposes of this lawsuit. Moreover, an issue of fact exists as to whether UNPC had constructive notice of the recurring ice formation as a result of the leaky gutter, inasmuch as the Millennium Hotel and UNDC, which are closely intertwined and employ high-level personnel in common with UNPC, were both named as defendants in another case in which the plaintiff there claimed to have been injured in the same manner and in the same location as plaintiffs herein. In any event, UNPC can be held liable to plaintiffs as C&W’s principal for any negligence committed by C&W, even if UNPC were not itself actively and directly negligent. Moreover UNPC, as a landowner, may not delegate its duty to keep its premises in a safe
The court also properly dismissed plaintiffs’ claims against Pritchard, correctly holding that Pritchard owed no duty to the injured plaintiff because the cleaning services agreement was between Pritchard and UNPC, and the injured person was neither a party to, nor an intended third-party beneficiary of, that contract (see Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, 226 [1990]). Nor do any of the exceptions set forth in Espinal v Melville Snow Contrs. (98 NY2d 136 [2002]) apply to justify imposing tort liability against Pritchard in favor of plaintiffs.
With respect to the cross claims for contractual indemnification among UNPC, C&W and Pritchard, there is evidence to indicate all three parties may have had at least constructive notice of the dangerous condition that allegedly caused the accident herein. The injured plaintiff testified that the water that formed the ice came from a leaky gutter located on the bottom part of the glass canopy. UNPC had overall responsibility for this dangerous condition as the landowner, C&W had responsibility pursuant to the property management agreement to repair and maintain the leaky gutter, and Pritchard had responsibility pursuant to the cleaning services agreement to remove ice and snow from the sidewalks. The injured plaintiff added that he had observed water leaking from the gutter on the day of his accident and on numerous prior occasions, that ice accumulated on the sidewalk as a result of water leaking from the gutter approximately a dozen times a year, and that he had heard about other people falling on the ice in the past. There is evidence that C&W knew about the recurring icy sidewalk condition based on this testimony that the injured plaintiff had told his supervisor at C&W about the condition but was unaware of any efforts made to stop the leak. If Pritchard was aware of ice forming on the sidewalk on a regular basis, it would be obligated to tell someone at C&W or UNPC about it so those entities could take the necessary precautions during the days/hours Pritchard’s porters were not on site to remove it. In any event, all three parties could have had constructive notice by virtue of the prior lawsuit stemming from a virtually identical accident in which UNPC, C&W and, eventually, Pritchard, were named.
The extent to which the parties will be entitled to indemnifica
The court also correctly granted UNPC and C&W conditional orders of contractual indemnification against Pritchard. The cleaning services agreement expressly requires Pritchard to indemnify UNPC and its agent, C&W, for any liability arising out of Pritchard’s negligence, and contains the requisite saving language, “to the fullest extent permitted by law,” to ensure that UNPC and C&W will only be indemnified to the extent they are not responsible for the injured plaintiffs accident.
The court erred, however, in granting conditional orders of indemnification in favor of Pritchard against C&W. Pritchard did not assert any cross claims for indemnification, based on common law or contract. Even if Pritchard had asserted a cross claim against C&W for common-law indemnification, it would be barred by
We have considered the parties’ remaining contentions and find them unavailing. Concur—Sweeny, J.P., Freedman, Richter, Manzanet-Daniels and Román, JJ.