Richards v. PassarelliRichards v. Passarelli
Ordered that the order is modified, on the law, (1) by deleting the provisions thereоf denying those branches of the cross motion of the defendant Calvanico Associates, Inc., which were for summary judgment dismissing the complaint insofar as asserted
The plaintiff was allegedly injured when she drove her vehicle off a curb and onto a sidewalk when attempting to exit the parking lot of a Pier 1 Imports store. The plaintiff testified at her deposition that she followed an arrow painted on the paved surface of the parking lot, which she believed was pointing toward an exit. She drove her vehicle over the curb wall onto the sidewalk below, a distance of approximately six inches. She testified that the edge of the parking lot was flush with the curb, and she could not see a ledge. There was no “curb reveal” or other painting, lighting, or signage indicating the presence of a curb. The plaintiff testified that there were no warning signs or markings to alert drivers to the height differential. The parking lot was owned by Guido Passarelli, Lucy Passarelli, and Passarelli Family Partnership, L.P., a New York Limited Partnership (hereinafter collectively the Passarelli defendants). The lot was designed in 1995 by Calvanico Associates, Inc. (hereinafter Calvaniсo). EIP Leasing Services, Inc. (hereinafter EIP), paved the lot in 1995, and then repaved it in 2003, adding approximately two inches of asphalt to the surface of the pаrking lot. Arrow Line Striping Co. (hereinafter Arrow) painted the lines, stripes, and arrows in the parking lot in 1995, and repainted the lot in 2003.
The Supreme Court did not err in denying the motion of the Pаssarelli defendants for summary judgment dismissing the
The Supreme Court also did not err in denying the motion of EIP Leasing Services, Inc. (hereinafter EIP), for summary judgment dismissing the complaint insofar as asserted against it. EIP failed to establish its prima facie entitlement to judgment as a matter of law, as its submissions revealed issues of fact as to whether EIP, by adding a layer of asphalt to the floor of the parking lot while failing to mill the entire lot, created or exacerbated a dangerous condition, thereby launching a force or instrument of harm (see Foster v Herbert Slepoy Corp., 76 AD3d 210 [2010]; Miller v Pike Co., Inc., 52 AD3d 1240 [2008]; Keese v Imperial Gardens Assoc., LLC, 36 AD3d 666 [2007]).
EIP‘s contention that the plaintiff was required to establish that she sustained a serious injury is without merit, as the plaintiff did not allege any negligence on the part of the defendants in the use or operation of a motor vehicle. Instead, the allegations against the defendants related to premises liability. Accordingly, none of the defendants was a “covered person” within the meаning of
However, EIP correctly contends that all cross claims asserted against it for both common-law and contractual indemnification should have been dismissed. There is no evidence that EIP had a contract with the Passarelli defendants, Pier 1 Imports, Calvanico, or Arrow that required EIP to indemnify any of them (see Foster v Herbert Slepoy Corp., 76 AD3d 210 [2010]; Corley v Country Squire Apts., Inc., 32 AD3d 978 [2006]; Keshavarz v Murphy, 242 AD2d 680 [1997]). Furthermore, the liability of EIP‘s codefendants, if any, would be based on their actual wrongdoing, not on their vicarious liability for EIP‘s allegedly negligent conduct (see Corley v Country Squire Apts., Inc., 32 AD3d 978 [2006]; Keshavarz v Murphy, 242 AD2d 680 [1997]), thus defeating all claims for common-law indemnification. Ac
The Supreme Court also erred in denying that branch of Calvanico‘s cross motion which was for summary judgment dismissing the complaint insofar as asserted against it. Calvanico established its prima facie entitlement to judgment as a matter of law by demonstrating that it was not negligent in the design of the subject parking lot. Calvanico‘s site plan provided for a six-inch “curb reveal” and detectable warning surfaces between the parking lot and the sidewalk. Calvaniсo‘s plan also included arrows showing the general direction of traffic flow. Calvanico established that it used the degree of care in design that a reasonаbly prudent architect would use to avoid an unreasonable risk of harm to anyone likely to be exposed to the danger (see Cubito v Kreisberg, 69 AD2d 738 [1979], affd 51 NY2d 900 [1980]; Morris v Attia, 7 Misc 3d 1001[A], 2005 NY Slip Op 50397[U] [2005]; Hughes v City of New York, 5 Misc 3d 1024[A], 2002 NY Slip Op 50724[U] [2002]).
To the extent that the “curb revеal” was eliminated during the repaving of the parking lot in 2003, that there were no warning markings to indicate to a driver that they were about to drive off the curb onto the sidewalk, and that the arrows were improperly placed, the lot was not constructed in accordance with Calvanico‘s plans. Therefore, any alleged nеgligent design by Calvanico was not a proximate cause of the plaintiff‘s accident (see Carpenter v Murphy, 4 AD3d 318 [2004]; Merritt v Hooshang Constr., 216 AD2d 542 [1995]). Since there are no triable issues of fact as to whether Calvаnico was negligent, the Supreme Court should have granted that branch of Calvanico‘s cross motion which was for summary judgment dismissing the complaint insofar as asserted against it.
We note that the plaintiff did not oppose Calvanico‘s cross motion in the Supreme Court, and that the Passarelli defendants did not raise any arguments in opposition to Calvanico‘s cross appeal.
Furthermore, the Supreme Court erred in denying that branch of Calvanico‘s cross motion which was for summary judgment dismissing the Passarеlli defendants’ cross claim against it alleging that it failed to procure insurance. The contract between Calvanico and the Passarelli defendants did not require Calvanico to procure insurance naming the Passarelli defendants as additional insureds (see Aragundi v Tishman Realty & Constr. Co., Inc., 68 AD3d 1027 [2009]; Bryde v CVS Pharmacy, 61 AD3d 907 [2009]). Mastro, J.P., Dickerson, Eng and Lott, JJ., concur.
Mastro, J.P., Dickerson, Eng and Lott, JJ., concur.