BARBARA ROGERS, Respondent, v ROCKEFELLER GROUP INTERNATIONAL, INC., et al., Respondents-Appellants, and PRITCHARD INDUSTRIES, INC., Appellant-Respondent.
Supreme Court, Appellate Division, Second Department, New York
832 N.Y.S.2d 600
Ordered that the order is reversed insofar as appealed and cross-appealed from, on the law, one bill of costs is awarded to the defendants appearing separately and filing separate briefs, payable by the plaintiff, the cross motion is granted, those branches of the motion of the defendants Rockefeller Group International, Inc., and Rock-Green, Inc., which were for summary judgment dismissing the complaint and the cross claim insofar as asserted against the defendant Rock-Green, Inc., and for summary judgment on the issue of liability in connection with the defendant Rock-Green, Inc.‘s third cross claim against the defendant Pritchard Industries, Inc., are granted, that branch of the motion which was for summary judgment on the
The plaintiff allegedly was injured when she slipped and fell on a wet portion of the lobby floor of the building where she worked, which was owned by the defendant Rock-Green, Inc. (hereinafter Rock). The defendant Pritchard Industries, Inc. (hereinafter Pritchard), was hired by Rock, inter alia, to maintain the lobby area. At her deposition, the plaintiff testified that it had started raining on the day of the accident sometime during her 40-minute commute to work. Although the plaintiff did not observe any wetness on the lobby floor either before or after the accident, she claimed that the floor must have been wet because her clothes were wet after the fall. The plaintiff further claimed that, at the time of the accident, there were rain mats on the lobby floor in front of other entrances, but none in front of the revolving door through which she entered.
Contrary to the plaintiff‘s contention, Rock and Pritchard established their prima facie entitlement to judgment as a matter of law by establishing that they did not create the alleged wet condition on the lobby floor, and had no obligation “to provide a constant remedy to the problem of water being tracked into [the lobby] in rainy weather” (Ruck v Levittown Norse Assoc., LLC, 27 AD3d 444, 445 [2006]; see Miller v Gimbel Bros., 262 NY 107, 108-109 [1933]; Ford v Citibank, N.A., 11 AD3d 508, 509 [2004]; Yearwood v Cushman & Wakefield, 294 AD2d 568, 568-569 [2002]; Negron v St. Patrick‘s Nursing Home, 248 AD2d 687 [1998]), particularly where, as here, the record establishes that the rain started only a short time before the accident occurred.
In opposition, the plaintiff failed to raise a triable issue of fact. The mere fact that the plaintiff‘s clothes were wet after the fall is insufficient to raise a triable issue of fact as to the liability of Rock or Pritchard for the alleged dangerous condition (see Kuchman v Olympia & York, USA, 238 AD2d 381, 382 [1997]), particularly in view of the plaintiff‘s own testimony that she never actually observed any wetness in the area where she fell, and in the absence of any evidence as to the length of time any alleged wet condition existed on the lobby floor or the
The Supreme Court also erred in granting that branch of the motion of Rock and RGI which was for summary judgment on the issue of liability in connection with Rock‘s fourth cross claim against Pritchard, seeking damages based on Pritchard‘s alleged failure to procure insurance coverage naming Rock as an additional insured. Pursuant to the terms of the services purchase agreement entered into between Rock and Pritchard, the latter was obligated, inter alia, to “procure and maintain . . . Comprehensive General Liability insurance” in the amounts specified by Rock but “in no event less than $3,000,000 in respect of injuries to or death of any one person.” Contrary to Rock‘s contentions, there is nothing in the agreement requiring Pritchard to procure insurance policies naming Rock and/or RGI as additional insureds. Pritchard was required only to procure and maintain insurance in the amounts indicated in the agreement. Therefore, Rock was not entitled to judgment as a matter of law on the fourth cross claim (see Ayotte v Gervasio, 81 NY2d 1062 [1993]) and, in light of our determination, the fourth cross claim should also have been dismissed as academic.
Finally, the Supreme Court erred in denying that branch of