SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

585 

CA 13-00013 

PRESENT: SCUDDER, P.J., SMITH, CENTRA, AND LINDLEY, JJ.

 

 

ROBERT M. PAYTON, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

5391 TRANSIT ROAD, LLC, AND CARROLS 

CORPORATION, DEFENDANTS-APPELLANTS.

--------------------------------------- 

CARROLS, LLC, A WHOLLY OWNED SUBSIDIARY 

OF CARROLS CORPORATION, THIRD-PARTY 

PLAINTIFF-RESPONDENT-APPELLANT,

V

 

JOSEPH H. TUDOR, DOING BUSINESS AS JM 

ENTERPRISES, THIRD-PARTY 

DEFENDANT-APPELLANT-RESPONDENT. 

 

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (KAREN KROGMAN OF

COUNSEL), FOR DEFENDANTS-APPELLANTS AND THIRD-PARTY PLAINTIFFRESPONDENT-APPELLANT. 

BARTH SULLIVAN BEHR, BUFFALO (LAURENCE D. BEHR OF COUNSEL), FOR

THIRD-PARTY DEFENDANT-APPELLANT-RESPONDENT. 

JUSTIN S. WHITE, WILLIAMSVILLE, FOR PLAINTIFF-RESPONDENT. 

 

Appeals from an order of the Supreme Court, Erie County (Diane Y.

Devlin, J.), entered October 9, 2012. The order denied the motion of

third-party defendant for summary judgment and the motion of

defendants and third-party plaintiff for summary judgment. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for

injuries he sustained when he slipped and fell in a parking lot of a

Burger King restaurant operated by defendant Carrols Corporation. The

parking lot was on property owned by defendant 5391 Transit Road, LLC. 

Third-party defendant, who was hired to perform snowplowing services

for the parking lot, moved for summary judgment dismissing the thirdparty complaint seeking contractual indemnification, and defendants

and third-party plaintiff moved for summary judgment dismissing the

complaint and for a conditional order of indemnification against

third-party defendant. Supreme Court properly denied the motions. 
-2- 585 

CA 13-00013 

Addressing first the motion of defendants and third-party

plaintiff, we note that it is well settled that a property owner has

“a duty to keep the property in a ‘reasonably safe condition in view

of all the circumstances, including the likelihood of injury to

others, the seriousness of the injury, and the burden of avoiding the

risk’ ” (Sweeney v Lopez, 16 AD3d 1174, 1175, quoting Basso v

Miller, 40 NY2d 233, 241). In addition, “ ‘[a] property owner is not

liable for an alleged hazard on [its] property involving snow or ice

unless [it] created the defect, or had actual or constructive notice

of its existence’ ” (id.). We conclude that defendants and thirdparty plaintiff failed to meet their initial burden of establishing

that defendants either did not create the dangerous condition or did

not have actual or constructive notice of it and thus failed to

establish their entitlement to summary judgment dismissing the

complaint. Plaintiff alleged that the dangerous condition consisted

of a mound of snow in the first parking space next to the front

entrance, which plaintiff climbed over to reach his vehicle parked in

the second parking space. The deposition testimony of plaintiff, the

restaurant manager, and third-party defendant raised a triable issue

of fact whether the snow mound was created by third-party defendant’s

removal of snow from the parking lot, by defendants’ removal of snow

from the sidewalk, or both, and whether defendants were aware of the

dangerous condition (see generally Frank v CPG Partners, L.P., 96 AD3d

900, 901; Rotella v Wegmans Food Mkts., 289 AD2d 1014, 1014; Giamboi v

Manor House Owners Corp., 277 AD2d 201, 202).

We further conclude that the court properly denied both motions

with respect to contractual indemnification inasmuch as there is a

triable issue of fact whether third-party defendant was negligent in

the performance of the snow removal contract (see Mesler v PODD LLC,

89 AD3d 1533, 1535; Trzaska v Allied Frozen Stor., Inc., 77 AD3d 1291,

1292-1293; Walter v United Parcel Serv., Inc., 56 AD3d 1187, 1188). 

Finally, we reject third-party defendant’s contention that the

indemnification agreement is ambiguous and therefore unenforceable

(see generally Rodrigues v N & S Bldg. Contrs., Inc., 5 NY3d 427,

433). 

Entered: June 7, 2013 Frances E. Cafarell

Clerk of the Court