Papers considered: Notice of Motion [Riverview]; Affidavit of Murry S. Brower, Esq., with exhibits; Affirmation in Opposition of Christopher J. Martin, Esq., with exhibits; Affidavit in Opposition of John J. Criscione, Esq., with exhibit; Affidavit of Judith McEleney. Notice of Motion [ABM]; Affirmation of Christopher J. Martin, Esq., with exhibits; Affidavit in Response of Murry S. Brower, Esq.; Affidavit in Opposition of John J. Criscione, Esq., with exhibits; Affidavit of Judith McEleney; Affirmation in Reply of Christopher J. Martin, Esq. Notice of Cross-Motion; Affidavit of John J. Criscione, Esq., with exhibits; Affirmation in Opposition of Christopher J. Martin, Esq.; Correspondence dated May 20, 2020 from Murry S. Brower, Esq.; Reply Affidavit of John J. Criscione, Esq. The matter comes before the Court on three motions. Defendants Riverview Assets, LLC and Hampshire Properties, LLC (collectively, the “Owners”) move for summary judgment dismissing the Complaint as against them. Defendant ABM Industry Groups, LLC (“ABM”) also moves for summary judgment dismissing the Complaint as against it. Plaintiffs cross-move for leave to amend and to supplement their Bill of Particulars. The parties oppose one another’s motions, with the exception that the Owners take no position on Plaintiffs’ cross-motion. This matter arises from a slip-and-fall incident. Plaintiffs allege that Judith McEleney (“Plaintiff”) was injured while walking through a hallway in the Owners’ building when she slipped on fluid that had escaped from a floor-cleaning machine owned by ABM, which had been left standing in the hallway by an ABM employee. ABM was hired by the Owners to provide janitorial services within the building, but the area where Plaintiff fell was in a portion of the building which had been leased by the Owners to Computer Science Corporation (“CSC”). Pursuant to that lease, CSC provided its own janitorial services. The ABM employee had been cleaning the floor in an adjacent area and had left the floor cleaning machine in the CSC portion of the hallway (which was wider) in order to avoid obstructing pedestrian traffic while he took a break. Turning first to the summary judgment motions, the proponent of a summary judgment motion carries the initial burden to make a prima facie showing of entitlement to judgment as a matter of law by presenting sufficient evidence to eliminate any material issues of fact (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]). If the requisite showing is made, the burden of proof then shifts to the responding party to show the presence of questions of fact requiring trial (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). The facts must be construed in a light most favorable to the non-moving party (see e.g. Hanna v. St. Lawrence County, 34 AD3d 1146 [3d Dept 2006]). The Owners’ Motion. Although both Riverview Assets, LLC and Hampshire Properties, LLC are listed on the Notice of Motion as moving parties, and the prayer for relief seeks summary judgment for both, the bulk of the discussion in their motion papers concerns Riverview only. The lease document that is discussed by all parties lists only Riverview as the landlord. For ease of reference, however, the movants will be referred to jointly as the Owners. A property owner moving for summary judgment must show that it maintained the subject property in a reasonably safe condition, and that it neither created, nor had actual or constructive notice of, the dangerous condition alleged (Van Duser v. Mount Saint Mary College, 176 AD3d 1532 [3d Dept 2019]; York v. Thompson Station, Inc., 172 AD3d 1593 [3d Dept 2019]). The Owners argue that because the machine at issue was owned by ABM and operated by an ABM employee, they did not create the dangerous condition alleged and had no actual notice of it. They also note that the machine was standing in the hallway for only a few moments before Plaintiff’s fall, so that they also had no constructive notice of the alleged condition. The Owners also assert the general rule that an out-of-possession landlord is not responsible for dangerous conditions existing on leased premises once possession has been surrendered to a tenant. This rule is subject to certain exceptions, such as where a landlord maintains control of the premises, has specifically contracted to repair or to maintain the premises, or has affirmatively created the dangerous condition (Boice v. PCK Development Co., LLC (121 AD3d 1246 [3d Dept 2014]). The Owners argue that because CSC provided its own janitorial services and the Owners had only a limited right to re-enter under the lease, they neither controlled nor maintained the area where Plaintiff fell. While the Owners’ make a strong argument as to the lack of notice, it is possible for an out-of-possession owner to create a dangerous condition vicariously through a maintenance contractor (see e.g. Arvanete v. Green Street Realty, 241 AD2d 909 [3d Dept 1997]). By essentially resting on their out-of-possession status, the Owners do not attempt to show that their agent, ABM, did not create the dangerous condition asserted by Plaintiffs. The Owners thus fail to carry their burden of proof on this motion. Moreover, both ABM and Plaintiffs oppose this motion by pointing to the rule that an owner of property that is open to the public has a non-delegable duty to maintain safe ingress and egress (Reynolds v. Sead Development Group., 257 AD2d 940 [3d Dept 1999]). While that duty is limited to areas of the premises that are actually open to the public (Wayman v. Roy Stanley, Inc. (122 AD3d 1119 [3d Dept 2014]), the opponents point out that Plaintiff was on her way home from work, walking through the hallway in order to reach an elevator she would use to get to the parking area where her car was located. Further, Plaintiff was not an employee of CSC, but was employed by a subtenant of CSC. It thus appears that the hallway was not restricted to CSC personnel. The area where Plaintiff allegedly fell was also adjacent to an acknowledged common area containing a bank of elevators used for ingress and egress and was open and accessible to any person exiting those elevators. The doors to that portion of the hallway were unlocked and, as shown in the photographs submitted as exhibits, standing open. In contrast to the interior stairway in Wayman that was not available for the public use, the hallway at issue here was arguably open to the public, raising a question of fact as to whether the Owners had a duty to maintain safe ingress and egress in that area. Given the failure of the Owners to carry their initial burden of proof and the question of fact as to whether the area was open to the public, the Owners’ motion must be denied. The ABM Motion. ABM centers its motion on a lack of duty. ABM notes that it is neither the owner of the building, nor the tenant in control of the space, nor the contractor responsible for cleaning the hallway at issue, so that none of the duties imposed on those entities could be ascribed to ABM. ABM further argues that the actions of its employee do not fall within any of the exceptions found in Espinal v. Melville Snow Contractors (98 NY2d 136 [2002]) that could serve as a basis for a duty assumed by ABM. In Espinal, the Court of Appeals noted the general rule that a contractual obligation, by itself, will not generally give rise to tort liability in favor of a third party. The opinion then surveys prior decisional law and outlines three exceptions to that general rule: (1) where the contracting party fails to exercise reasonable care, and in doing so, “launches a force or instrument of harm” (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely (Id. at 140 citations omitted]). ABM relies largely on the deposition testimony of the machine operator to establish the absence of Espinal exceptions. However, a reading of the transcript shows that the testimony is not so unequivocal as ABM would have it. ABM’s counsel argues that upon returning to the machine after Plaintiff reported her fall to him, the operator saw no water or other liquid on the floor. The testimony referred to, however, is “I didn’t see nothing, no water. But I’m not saying there wasn’t, but .” He later acknowledged that there could have been water on the floor, but he simply did not know. ABM also argues that the operator testified that he had never observed any instances where the machine leaked or where there was water or moisture left after the machine had passed over an area. That testimony, however, includes the statement, “I’m not saying there wouldn’t be. Might be a little bit.” He also testified that he would put up “wet floor” signs when the floors were wet while he was using the machine. Plaintiffs are also able to point to testimony that conflicts with ABM’s version of events. Plaintiff testified in deposition that she fell when walking past the standing floor cleaning machine and that, after her fall, her pantleg was wet. She also testified that when she reported her fall to the machine operator, he told her that the machine had not been working properly and needed to be fixed. Plaintiffs also point to testimony by ABM’s building supervisor that before turning off this type of machine, it is important to ensure that all water and cleaning fluid have been completely vacuumed from the hoses and into the holding tank. Otherwise, it could run back through the hoses, out of the machine and onto the floor. The Court notes that the building supervisor was deposed on the day after the machine operator’s deposition and, perhaps consequently, the operator was not questioned as to whether he had done this. The operator did testify, however, that he had limited experience with the machine. Considering this evidence in a light most favorable to Plaintiff, it is sufficient to raise a question of fact as to whether the ABM employee launched the force or instrument of harm that caused Plaintiff to fall, which would make the first Espinal exception applicable here. Plaintiffs also assert the second Espinal exception, arguing that Plaintiff relied on ABM’s continued performance under its contract with Riverview. This exception does not apply to the facts here, however, because Plaintiff’s fall took place in an area of the hallway where ABM had no contractual duty. As noted in the Espinal opinion, the source of this exception is the Court of Appeals decision in Eaves Brooks Costume Co., Inc. v. Y.B.H. Realty Corp. (76 NY2d 220 [1990]). The Eaves Brooks decision holds that a duty of care can be found where the failure to perform a contractual duty goes beyond simply withholding a benefit and actively works an injury (Id. at 226; see also Moran v. City of Schenectady, 47 AD3d 1001 [3d Dept 2008]). Because ABM had no contractual duty to act in the area where Plaintiff fell, no contractual performance was withheld and this Espinal exception did not arise. Given the question of fact as to whether ABM’s employee launched the force or instrument of harm that caused Plaintiff to fall, the ABM motion must be denied. Plaintiffs’ Cross-Motion. Plaintiffs move for leave to supplement and amend their Bill of Particulars. Plaintiffs argue that they wish to incorporate facts gleaned from discovery and more clearly allege two Espinal exceptions which they assert as applicable. Plaintiffs point out that their original Bill of Particulars contains allegations of the core facts for these exceptions, so that Defendants were on notice. This motion does not require extensive analysis because of the procedural posture of this case. No prior amendment of, or supplement to, Plaintiffs’ original Bill of Particulars is apparent on the record here. A note of issue has not yet been filed and no trial date has been set. Plaintiffs are therefore entitled both to amend and to supplement their bill without leave of court (CPLR 3042[b] & 3043[b]). Their motion must be granted, but in light of the discussion above, Plaintiffs are limited to the single Espinal exception that applies to the facts here. Therefore, in consideration of the foregoing, it is hereby ORDERED, that the motion by defendants Riverview Assets, Inc. and Hampshire Properties, LLC seeking summary judgment dismissing the Complaint in this action is denied; and it is further ORDERED, that the motion by defendant ABM Industry Groups, LLC seeking summary judgment dismissing the Complaint in this action is denied; and it is further ORDERED, that the motion by Plaintiffs seeking leave to amend and to supplement their Bill of Particulars is granted. Dated: July 2, 2020
