### West v 375 HH LLC 2024 NY Slip Op 30345(U) January 30, 2024 Supreme Court, New York County Docket Number: Index No. 157890/2019 Judge: Sabrina Kraus Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.NYSCEF DOC. NO. 86 INDEX NO. 157890/2019 RECEIVED NYSCEF: 01/30/2024

PRESENT: 

### SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY HON. SABRINA KRAUS PART Justice 57M

---------------------------------------------------------------------------------X INDEX NO. 157890/2019

JAMES VALENTINE WEST, Plaintiff,

- V - 375 HH LLC, NTT SERVICES, L.L.C., PRITCHARD INDUSTRIES, INC., HINES INTERESTS LIMITED PARTNERSHIP, Defendants.

---------------------------------------------------------------------------------X MOTION DATE 07/17/2023 MOTION SEQ. NO. 001
DECISION + ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 001) 33, 34, 35, 36, 37, 38, 39,40,41,42,43,44,45,46,47,48,49,50,51,52,53,54,55,56,57,58,59,60, 61, 62,63,64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85 were read on this motion to/for SUMMARY JUDGMENT
BACKGROUND Plaintiffcommenced this action seeking damages for personal injuries alleged suffered when he slipped and fell in the lobby of375 Hudson Street, New York, New York. 375 HH, LLC is the owner of375 Hudson Street, and Hines Interests Limited Partnership ("Hines") is the managing agent. NIT Services is the contractorproviding maintenance services at in the building. PENDING MOTIONS 

### On August 17, 2023. Hines moved for summaryjudgment and dismissal ofthe complaint and cross claims against them, and for summaryjudgment on their cross-claims against codefendants for contractual indemnification.

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### On the same date, NIT Services and Pritchard Industries, Inc. cross-moved for summary judgment and dismissal ofplaintiffs complaint, as well as dismissal ofall cross-claims against them, including claims for contractual indemnification. On October 9, 2023, the motion and cross-motion were fully briefed and marked submitted. The motions are granted to the extent set forth below. ALLEGED FACTS 

### Plaintiffslipped and fell on April 30, 2019, at approximately 5:50 am. 1

### At the time, Plaintiffwas employed by Turner Construction as a Senior Safety Manager, with an office located on the 6 th 

### floor ofthe building. NIT asserts that according to an official NOAA weather, it had rained during the early morning hours ofand was drizzling at 5:50 am. Plaintiffcould notrecall whether there was any precipitation or dampness outside the building on the sidewalks. Plaintiffwalked into the building holding a closed umbrella which fell to the floor when he slipped. Plaintiffs counsel asserts that it was not drizzling at the time, and that the court should not consider the weather report relied in by NIT because the weatherreport is for JFK airport and not comparable to the weather at the west side ofManhattan and the data is not interpreted by an expert. Plaintifffurther argues that the report shows no precipitation at 5:50 am. Plaintiffdid notrecall whether he took the train or his vehicle on the day ofthe accident, but either way, Plaintiffwould have walkedbetween a halfblock and ablock to get to the building. Plaintiffmet a co-worker, Michael O'Brien and entered the building through the main

1 Plaintiffasserts it was 5:30 am but the time on the video indicates it was 5:48 am.

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entrance with O'Brien. The lobby was very clean. The video shows that runners/mats were laid out from the entrance all the way to the guard booth, and that Plaintiffstepped offthe mat with his left foot and slipped and fell onto the marble floor. Plaintifftestified that he does notknow what caused him to fall. He speculated that it could have been from wax or dampness. Plaintifftestified that the floor was very slippery, but he didn't know why. Plaintifftestified that the floor looked remarkably clean and shiny, almost wet, like freshly waxed. The video, which does not show anything on the floor where Plaintiff fell. Plaintiffat no time noticed any wetness ormoisture on his clothing after he fell. NIT was the contractorproviding cleaning and maintenance ofthe building. NIT was responsible forjanitorial service for the lobby, including sweeping, mopping, spot mopping, placement ofmats depending on the weather, placement ofwarning signs iffloor wet from an unexpected condition, due to weather or after mopping. Plaintiffasserts that no signs were in place, warning that the floor was wet from cleaning. NIT asserts signs were in place that the floor could be wetbecause ofthe rain. The video shows signs in place, butwhat was written on the signs is not observable in the video. Pritchard Industries fulfills NIT's contractual obligations at the building. NIT employees swept and mopped the floor nightly. Mopping was done with a mop and bucket owned byPritchard Industries. Ifa wet condition occurred within an area, including the lobby, NIT would spot mopjust to soak up a spill or accumulation oftracked in water. NIT had a day crew and a night crew. The night shift works from 5:00 pmuntil 12:30 am. After 12:30 am, NIT had only one employee on premises until 7am. NTT's night crew would mop the lobby between the hours of9 pm and 12 midnight. Aftermidnight, there was no mopping done by NIT's lone employee within the

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building. IfNTT was notified or observed any condition, wet or otherwise, NIT employees would address as needed including the spot mopping due to the tracking in ofwater from the outside. On the day ofthe accident, prior to the accident, there had been no complaints ofa wet or slippery condition on the lobby floor, NIT/PRITCHARD had notbeen asked to address or clean
a wet or slippery condition on the lobby floor and NIT /PRITCHARD did not mop or wax the lobby floor on the morning ofthe accident nor were they called to do so. Neither NIT nor PRITCHARD waxed the lobby floor at any time, nor does the contract forjanitorial services include waxing the lobby floor. However, the owner does hire an outside company to do an annual "demonizing" treatment ofthe lobby floor. Thejanitorial services contract contains an indemnification clause with the following language: Contractor shall
...defend, indemnify and hold harmless
...Owner/Owner's Agent...from and against all liability, claims, damages, losses and expenses, including, without limitation, reasonable legal fees and court costs, arising out ofor alleged to arise out of the negligence or willful misconduct ofthe Contractor, its agents and/or employees or a breach ofany ofthe terms ofthis Agreement by the Contractor, or from the negligent or willful misconduct ofany Subcontractor or its agents and/or employees or a breach by a Subcontractor ofany ofthe terms and conditions ofits Subcontract
... DISCUSSION A party moving for summaryjudgmentmustmake aprima facie showing ofentitlement tojudgment as a matter oflaw, tendering sufficient evidence in admissible form to demonstrate the absence ofmaterial issues offact (Ostrov v Rozbruch, 91 AD3d 147, 152 [1st Dept 2012], citingAlvarezv ProspectHospital, 68 NY2d 320, 324 [1986]; Santiago v Filstein, 35 AD3d 184, 185-186 [1st Dept 2006], quoting Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; CPLR 3212 [b]). A failure to make such a showing requires denial ofthe motion,

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regardless ofthe sufficiency ofthe opposing papers (see Smalls vAJIIndus., Inc., IO NY3d 733, 735 [2008]). Once aprima facie showing has been made, however, "the burden shifts to the nonmoving party to produce evidentiary proofin admissible form sufficient to establish the existence ofmaterial issues offact that require a trial for resolution" (Mazurek vMetropolitan Museum of Art, 27 AD3d 227,228 [1st Dept2006]; Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]; Zuckerman v City of New York, 49 NY2d 557,562 [1980]; DeRosa v City of New York, 30 AD3d 323, 325 [1st Dept 2006]). When deciding a summaryjudgmentmotion, the court's role is solely to determine ifany triable issues exist, not to determine the merits ofany such issues (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395,404 [1957]). The court must view the evidence in the light most favorable to the nonmoving party, and give the nonmoving party the benefit ofall reasonable inferences that can be drawn from the evidence (see Negri v Stop 

### & Shop, Inc., 65 NY2d 625, 626 [1985]). Ifthere is any doubt as to the existence ofa triable fact, the motion for summaryjudgmentmust be denied (Rotuba Extruders v Ceppos, 46 NY2d 223,231 [1978]; Grossman vAmalgamatedHaus. Corp., 298 AD2d 224,226 [1st Dept 2002]; CPLR 3212[b]). DefendantsAreEntitledto SummaryJudgment on Plaintiffs Complaint Because Of PlaintiffsInability to Identify a Condition That CausedHim To Fall A plaintiff's inability to identify the defective condition that caused plaintiff's fall is fatal to the action because a finding that the defendant's negligence, ifany, proximately caused plaintiff's injuries would be based on speculation, 0 'Connor vMetroManagementDevelopment, Inc., 130 AD3d 698 (2d Dept 2015); Smith v Maloney, 91 AD3d 1259 (3d Dept 2012); Califano
v Maple Lanes, 91 AD3d 896 (2d Dept 2012); Siegel vNew York, 86 AD3d 452 (1st Dept 2011);
seeKane v Estia GreekRestaurant, Inc., 4 AD3d 189, 772 NYS2d 59 (1st Dept 2004).

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The rationale for this rule is that ifa plaintiffcannot identify the defective condition, it is just as likely that the fall could have been caused by some factor for which the defendant is not responsible, e.g., misstep byplaintiffor loss ofbalance, Califano v Lanes, supra; Gettinger v AmeradaHess Corp., 15 AD3d 654 638 (2d Dept 2005). To satisfy the requirement, the plaintiffmust identify the defect itself; mere identification ofthe approximate location ofthe accident is insufficient, see Siegel vNew York, supra. In this case, Plaintifftestified that he does not know whyhe slipped. He did notknow ifit
was because the floor was wet orwhether it hadbeenrecently cleaned. The only evidence Plaintiffprovided was thathe saw an item he believed was used to clean orbufffloors in the
comer ofthe lobby and he saw some uniformedpersonnel by the elevator. The court finds that defendants have met theirburden in establishing aprima facie entitlement to summaryjudgment and that plaintiffhas failed to raise a triable issue offact in response. Defendants met their initial burden ofdemonstrating that they neither created any hazardous condition nor had actual or constructive notice ofthe existence ofany alleged condition. The evidence ofthe regularroutine for cleaning the floors before midnight, and that they hadneverwaxed the floors was sufficient to shift the burden to plaintiffto demonstrate the existence ofquestions offact. Raghu vNew York City HousingAuthority 72 AD3d 480, 481-82 (!81Dept, 2010). On a case on point, Silber v Sullivan Properties 182 AD3d 512 (!81Dept, 2020) the court held in pertinentpart:

.... plaintiffalleged that the accident was due to defendant's negligence in causing and allowing the building's entrance to be in an excessivelywet, slippery, and hazardous condition. Plaintifftestified that, he did not see what had caused him to slip, eitherbefore or after he fell, buthe believed the cause was the slippery marble door saddle at the top of the stairs coupled with the wet surface from the rain.
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Defendantmade a prima facie showing that there was no dangerous condition in existence when plaintiffslipped and fell, and that it was therefore entitled to summary judgment (Ceron v Yeshiva Univ. , 126 AD3d 630, 632 [1st Dept 2015]). Plaintiffs mere speculation about causation is inadequate to sustain a cause ofaction ( DaSilva v KS Realty, L.P. , 138 AD3d 619, 620 [1st Dept 2016]). Even ifplaintiffwas unsure as to the cause ofthe accident, the record shows that defendant lackednotice ofthe existence of any dangerous condition (see Waiters v Northern Trust Co. ofNY, 29 AD3d 325, 327 [1st Dept 2006]; see e.g. Perez vAbbeyAssoc. Corp. , 103 AD3d 573 [1st Dept 2013]). In opposition, plaintifffailed to raise a triable issue offact. Silber v. Sullivan Properties, L.P., 182 A.D.3d 512, 512-13 (2020). In a case on point the Appellate Division, First Departmentheld: It is well settled that the fact that a floor is slippery byreason ofits smoothness or polish, in the absence ofany proofofthe negligent application ofwax orpolish, does not give rise to a cause ofaction, or an inference ofnegligence (Thomas v Caldor's, 224 AD2d 171; Pizzi vBradlee's Div., 172 AD2d 504; Katz vNew YorkHosp., 170 AD2d 345). In the matterbefore us, the conclusory, self-serving and highly speculative allegations profferedby the plaintiffare insufficient to defeat Supreme Building's motion for summaryjudgment. Pagan v. Loe. 23-25Int'l Ladies Garment Workers Union, 234 A.D.2d 37, 38 (I8t Dept., 1996). See alsoAcunia ex rel. Salgado v. New York City Dep't of Educ. , 68 A.D.3d 631, 632 (1 st Dept., 2009)(withoutspecific allegations as to whatprecipitatedplaintiff's fall, claim that negligence in maintaining the floor was theproximate cause of his injuries is speculation); Kudrov v. Laro Servs. Sys., Inc. , 41 A.D.3d 315 (I8t Dept., 2007) (plaintiff's testimony that sheslippedand fell
on a "shiny, slippery" floor did notgive rise to inference of negligence and insufficient to defeat summaryjudgment); Villa v. Prop. Res. Corp. , 137 A.D.3d 454 (1 st Dept., 20I6)(defendants met burden of demonstrating that no waxy residue was on the floor through their testimony that the floor was neverwaxed, butmoppeddaily,plaintiffs testimony that shesaw buffingmachine used

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the day before she fell, andher claim that the wetness she felt on herpants andhands after she fell smelledlike "wax or ammonia," insufficient to raise an issue of fact). Additionally, as to NIT and Pritchard, Plaintifffailed to respond to the argument that these defendants owed plaintiffno duty as they are independent contractors, plaintiffdid not argue any exceptions apply underEspinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136 (2002) and plaintiffdid not show these defendants created a dangerous condition. Based on the foregoing the motions ofall defendants for summaryjudgment and dismissal ofplaintiffs complaint are granted. Hines'Motionfor SummaryJudgment on its ContractualIndemnffication Crossclaim Is Deniedand The Cross-Motion to Dismiss The Crossclaim Is Granted Contractual indemnification is generally decided as a matter oflaw. A party is entitled to full contractual indemnityprovided the intention to indemnify can be clearly implied from the language and purposes ofthe entire agreement and the surrounding facts and circumstances. Drzewinski v. Atlantic Scaffold 

### &Ladder Co., Inc., 70 N.Y.2d 216 (1987). The subject indemnification clause contains the following language: To the fullest extentpermitted bylaw, the Contractor shall protect, defend, indemnify and hold harmless the Owner. ..from and against all liability, claims, damages, losses and expenses, including, without limitation, reasonable legal fees and court costs, arising out ofor alleged to arise out ofthe negligence or willful misconduct ofthe Contractor, its agents and/or employees or a breach ofany ofthe terms ofthis Agreement... As noted above, the Courthas found the evidence in the record in sufficient to establish any negligence on the part ofeither defendants. While the contract also contains the language that claims "alleged to arise out ofnegligence" would form a basis for indemnification, Plaintiffs allegations in this case were insufficient to allege that his claim arose out ofNIT's negligence, as his onlyreal allegation was that the floor was shiny and slippery.

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### The cases relied upon by Hines, Rogers v. Rockefeller Group Intl., Inc. 

### 38 A.D.3d 747 (2nd Dept. 2007); Mormille v. Jamestown Mgt. Corp., 

### 21 Misc.3d 1129(A) (Sup. Ct., Kings Cty 2008) are distinguishable from the case at bar, as in those cases a condition was actually identified and undisputed to be in existence, in one case there was active mopping going on, and in another there was rain, in this case, we essentially only have the allegation ofa shiny slippery floor. Based on the foregoing Hines' motion for summaryjudgment on the crossclaims is denied and NIT's motion to dismiss the crossclaims is granted. WHEREFORE it is hereby: ORDERED that the defendants' motions for summary judgment and dismissal of the complaint are granted and the complaint is dismissed with costs and disbursements to defendants
as taxed by the Clerk upon the submission ofan appropriate bill ofcosts; and it is further ORDERED that all cross-claims are dismissed; and it is further ORDERED that the Clerk is directed to enterjudgment accordingly; and it is further ORDERED that, within 20 days from entry ofthis order, defendants shall serve a copy of this order with notice ofentry on the Clerk ofthe General Clerk's Office (60 Centre Street, Room 119); and it is further ORDERED that such service upon the Clerk shall be made in accordance with the procedures set forth in the Protocolon Courthouse and County ClerkProcedures for ElectronicallyFiled Cases 

### (accessible at the "E-Filing" page on the court's website at the addresswww.nycourts.gov/supctmanh);]; and it is further

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ORDERED that anyreliefnot expressly addressed has nonetheless been considered and is hereby denied. This constitutes the decision and order ofthis court.

1/30/2024

DATE SABRINA KRAUS, J.S.C. CHECK ONE: 

# 0 CASE DISPOSED**□** GRANTED**□** NON-FINAL DISPOSITION**□** DENIED 

# 0 GRANTED IN PART

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