The following numbered papers were read on this motion by third-party defendant, American Pride Trucking, Inc. (American Pride) (Seq. 4), and motion by defendants (Seq. 5), both seeking summary judgment dismissing the complaint. Papers/Numbered Notice of Motion (Seq. 4) — Affirmation — Exhibits E63-E77 Answering Affirmation — Exhibits E101-E104 Reply Affirmation E118 Notice of Motion (Seq. 5) — Affirmation — Exhibits E78-E99 Answering Affirmation — Exhibits E107-E117 ADDITIONAL CASES Wappinger Shopping Center LLC, Third-Party Plaintiff, v. Goodwill Industries of Greater New York and Northern New Jersey, Inc., Third-Party Defendant Upon the foregoing papers, it is ordered that defendants’ motions are determined as follows: On August 20, 2016, plaintiff, Victor Dubon, a driver employed by third-party defendant, American Pride, was making a delivery and pickup of merchandise from defendant, Goodwill Industries of Greater New York and Northern New Jersey, Inc. (Goodwill), at 1488 U.S. Rte. 9, in Wappinger Falls, New York, with a co-worker. As he had “fifteen to twenty times before,” plaintiff backed the American Pride truck into the loading bay at the Goodwill premises. Due to bumpers situated at the dock wall, there was a gap between the rear floor of the vehicle and the loading dock. A heavy dock plate was available to be used to bridge the gap, to allow for the loading and unloading of the truck. Plaintiff alleges that as he was moving the dock plate with his foot, his foot slipped and fell through the gap between the truck and the dock, causing him injuries to his shoulder, leg, and back. Plaintiff commenced an action against defendant, Wappinger Shopping Center, LLC (Wappinger), the owner of the premises, which had been leased to Goodwill, in 2017, and Wappinger brought a third-party claim against Goodwill. In June 2018, those actions were consolidated for all purposes, pursuant to court order. In July 2018, Goodwill commenced a third-party action against plaintiff’s employer, American Pride. Discovery ensued. Plaintiff contends that one or both defendants were negligent in, among other things, creating the hazardous and dangerous condition of the gap, or failing to correct said condition, which caused his injuries. Third-party defendant, American Pride, moves (Seq. 4) for summary judgment dismissing third-party plaintiff’s complaint, on the ground that plaintiff failed to sustain a “grave injury,” under Workers Compensation Law (WCL) §11. Defendants move (Seq.5) for summary judgment dismissing the complaint, pursuant to CPLR 3212, on the grounds that Wappinger was an out-of-possession landlord, with no duty toward plaintiff; that they were not negligent and there was no dangerous condition at the site; and that plaintiff’s negligence was the sole cause of the accident. Plaintiff opposes. “[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Ayotte v. Gervasio, 81 NY2d 1062, 1063 [1993], citing Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; see Schmitt v. Medford Kidney Center, 121 AD3d 1088 [2014]; Zapata v. Buitriago, 107 AD3d 977 [2013]). Once a prima facie demonstration has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of a material issue of fact which requires a trial of the action (Zuckerman v. City of New York, 49 NY2d 557 [1980]). On defendants’ motion for summary judgment, the evidence should be liberally construed in a light most favorable to the non-moving plaintiff (see Monroy v. Lexington Operating Partners, LLC, 179 AD3d 1053 [2d Dept 2020]; Rivera v. Town of Wappinger, 164 AD3d 932 [2d Dept 2018]: Boulos v. Lerner-Harrington, 124 AD3d 709 [2d Dept 2015]). Credibility issues regarding the circumstances of the subject transactions require resolution by the trier of fact (see Bravo v. Vargas, 113 AD3d 579 [2d Dept 2014]; Martin v. Cartledge, 102 AD3d 841 [2d Dept 2013]), and the denial of summary judgment. The Court’s function on a motion for summary judgment is “to determine whether material factual issues exist, not to resolve such issues” (Lopez v. Beltre, 59 AD3d 683, 685 [2d Dept 2009]; Santiago v. Joyce, 127 AD3d 954 [2d Dept 2015]). As summary judgment is to be considered the procedural equivalent of a trial, “it must clearly appear that no material and triable issue of fact is presented…. This drastic remedy should not be granted where there is any doubt as to the existence of such issues…or where the issue is ‘arguable’ [citations omitted] (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; see also, Rotuba Extruders v.Ceppos, 46 NY2d 223 [1978]; Andre v. Pomeroy, 35 NY2d 361 [1974]; Stukas v. Streiter, 83 AD3d 18 [2d Dept 2011]; Dykeman v. Heht, 52 AD3d 767 [2d Dept 2008]. Summary judgment “should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility” (Collado v. Jiacono, 126 AD3d 927 [2d Dept 2014]), citing Scott v. Long Is. Power Auth., 294 AD2d 348, 348 [2d Dept 2002]; see Charlery v. Allied Transit Corp., 163 AD3 914 [2d Dept 2018]; Chimbo v. Bolivar, 142 AD3d 944 [2d Dept 2016]; Bravo v. Vargas, 113 AD3d 579 [2d Dept 2014]).). The burden is on the party moving for summary judgment to demonstrate the absence of a material issue of fact. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966 [1988]; Winegrad v. New York Med. Ctr., 64 NY2d 851 [1985]). Third-party defendant moves against third-party plaintiff, Goodwill (Seq. 4), for summary judgment dismissing Goodwill’s claims for contribution and indemnity against it, contending that, as the plaintiff’s employer, it cannot be sued, pursuant to WCL 11. Initially, Goodwill alleges that the motion must be denied, as movant failed to attach all of the pleadings as exhibits to said motion. While CPLR 3212 (b) requires that a motion for summary judgment be supported by a copy of the pleadings, CPLR 2001 permits the court to disregard a party’s mistake or omission if the missing pleadings ultimately find their way into the motion record, and there is “no evidence that a substantial right of the plaintiff was prejudiced by defendant’s failure” (Montalvo v. Episcopal Health Servs., Inc, 172 AD3d 1357, 1359 [2d Dept 2019]; see Patel v. S. & S. Props., Inc,, 165 AD3d 827 [2d Dept 2018]; Sensible Choice Contracting, LLC v. Rodgers, 164 AD3d 705 [2d Dept 2018]; Wade v. Knight Transp., Inc., 151 AD3d 1102 [2d Dept 2017]). In this instance, the missing documents appeared and there was no allegation of prejudice occasioned by the delay, so this element of third-party plaintiff’s opposition is without merit. To bring an action against plaintiff’s employer for indemnification and/or contribution, there must either be a “written contract entered into prior to the accident…by which the employer expressly agreed to contribution or indemnification of the claimant…(or) if the employee has sustained a ‘grave injury’” (Grech v. HRC Corp., 150 AD3d 829, 830 [2d Dept 2017]; see Fleming v. Graham, 10 NY3d 296 [2008]; McIntosh v. Ronit Realty, LLC, 181 AD3d 580 [2d Dept 2019]; Cassese v. SVJ Joralemon, LLC, 168 AD3d 667 [2d Dept 2019]). “Injuries qualifying as grave are narrowly defined in Worker’s Compensation Law §11″ (Castro v. United Container Machinery Group, Inc., 96 NY2d 398, 401 [2001]). The list of injuries contained in WCL 11 are “intended to be exhaustive, not illustrative” (Dunn v. Smithtown Bancorp, 286 AD2d 701, 702 [2d Dept 2001]; see Castillo v. 711 Group, Inc., 41 AD3d 77 [2d Dept 2007]), and must be “permanent” (Grech v. HRC Corp., 150 AD3d 829, 830 [2d Dept 2017]). The necessary “permanent total disability” requires a demonstration that “the injured worker is no longer employable in any capacity” (Rubies v. Aqua Club, Inc., 3 NY3d 408, 413 [2004]; see Cioffi v. S.M. Foods, Inc., 178 AD3d 1006 [2d Dept 2019]; Grech v. HRC Corp., 150 AD3d 829). In the case at bar, it is conceded, by the lack of opposition, that plaintiff failed to sustain a “grave injury” as defined in WCL 11. However, even in the absence of a grave injury, an employer may be subject to an indemnity and/or contribution claim if an express, written agreement to indemnify exists (see Persaud v. Bovis Lend Lease, Inc., 93 AD3d 831 [2d Dept 2012]; see generally, Cacanoski v. 35 Cedar Place Assoc., LLC, 147 AD3d 810 [2d Dept 2017]). Here, there is proffered a five-year “Agreement for Transportation Services,” dated December 28, 2015, between Goodwill and American Pride, containing a section “7. Indemnification,” which appears to state that the Carrier (American Pride) holds the Shipper (Goodwill) harmless for “all liabilities, damages, charges, expenses…which may be imposed upon or incurred by Shipper by reason of the negligence of Carrier, or any of its…employees…in performing its duties under this Agreement.” The mere existence of such a contract is sufficient to deny American Pride prima facie entitlement to summary judgment herein, as it has failed to disprove the “alleged existence of a contract to indemnify” (Eshonkulov v. Rafiqul, 176 AD3d 780, 782 [2d Dept 2019]; see Fleming v. Graham, 10 NY3d 296). Consequently, American Pride’s motion for summary judgment, dismissing the third-party complaint pursuant to WCL 11, is denied. Defendants move to dismiss the complaint as against them. Wappinger contends that it owed no duty to plaintiff, as it was an out-of-possession landlord; did not create the alleged dangerous condition; that there was no dangerous condition at the loading dock; that any such condition thereat was “open and obvious”; and that plaintiff’s negligence was the sole proximate cause of plaintiff’s injuries. Goodwill contends that it owed no duty to plaintiff as it did not own the property, nor did it create the alleged dangerous condition; that plaintiff’s aactions were the sole cause of his injuries; and that the condition was “open and obvious.” “A finding of negligence may be based only upon the breach of a duty. If, in connection with the acts complained of, the defendant owes no duty, the action must fall” (Darby v. Compagnie Nat’l. Air France, 96 NY2d 343, 347 [2001]; see Plainview Props. SPE, LLC v. County of Nassau, 181 AD3d 731 [2d Dept 2020]; Pinto v. Walt Whitman Mall, LLC, 175 AD3d 541 [2d Dept 2019]; Federico v. Defoe Corp., 138 AD3d 682 [2d Dept 2016]; Abrams v. Bute, 138 AD3d 179 [2d Dept. 2016]). The existence of a duty is a threshold question of law for the court to determine (see Espinal v. Melville Snow Contractors, 98 NY2d 136 [2002]; Abbott v. Johnson, 152 AD3d 730 [2d Dept 2017]). “Imposition of liability for a dangerous condition on property, must be predicated upon occupancy, ownership, control or special use of that premises” (Velez v. Captain Luna’s Marina, 74 AD3d 1191, 1192 [2010]; see Sobel v. City of New York, 120 AD3d 485 [2014]; LaGuarina v. Metropolitan Transit Authority, 109 AD3d 793 [2013]), and a party “cannot be held liable where none of those predicates exist” (Slavin v. Village of Sleepy Hollow, 150 AD3d 924, 925 [2d Dept 2017]; see Zebzda v. Hudson Street, LLC, 156 AD3d 851 [2d Dept 2017]). Here, Wappinger was the owner, and Goodwill was the tenant, of the subject property. “A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff’s presence on the property” (Genefar v. Great Neck Park District, 156 AD3d 762, 763 [2d Dept 2017], quoting Groom v. Village of Sea Cliff, 50 AD3d 1094, 1094 [2d Dept 2008]; see Kellman v. 45 Tiemann Assoc., 87 NY2d 871 [1995]; Locke v. Calamit, 175 AD3d 560 [2d Dept 2019]). However, “[a]n out-of-possession landlord and its agent are not liable for injuries caused by dangerous conditions on leased premises in the absence of a statute imposing liability, a contractual provision placing duty to repair on the landlord, or a course of conduct by the landlord giving rise to a duty” (Muller v. City of New York, 185 AD3d 834, 834 [2d Dept 2020] quoting Irizarry v. Felice Realty Corp., 157 AD3d 874, 874 [2d Dept 2018]; see Michaels v. Steph-Leigh Associates, LLC, 178 AD3d 820 [2d Dept 2019]; Robbins v. 237 Avenue X, LLC, 177 AD3d 799 [2d Dept 2019]). Here, Wappinger has failed to proffer sufficient evidence to qualify as an out-of-possession landlord as a matter of law, as the conduct of Wappinger’s property managers, in visiting the property six to eight times a year, for purposes including a “property check,” raises an issue of fact as to “a course of conduct…giving rise to a duty.” Further, although an owner has no duty to protect against an open and obvious condition, provided that, as a matter of law, the condition is not an inherently dangerous one (see Spina v. Brookwood Ronkonkoma, LLC, 185 AD3d 621 [2d Dept 2020]; Holmes v. Mary’s Retail Holdings, Inc., 184 AD3d 811 [2d Dept 2020]), and such determination, being fact-specific, is usually a jury question, a court may determine open and obvious, as a matter of law, “when facts compel that conclusion…on the basis of clear and undisputed evidence (Tagle v. Jakob, 97 NY2d 165, 169 [2001]). Movants have failed to proffer such evidence herein. Although the activity being performed was not an “inherently dangerous” one, as a matter of law, the defendants were aware of the risk of loading and unloading at the docks, due to the gap caused by the bumpers, as evidenced by the fact that they provided the dock plate to, practically, put an end to that condition, and said dock plate’s appropriateness raises another issue of fact herein. The law is clear that “evidence that the dangerous condition was open and obvious cannot relieve a landowner” of the burden to exercise reasonable care in maintaining the property in a safe condition (Kastin v. Ohr Moshe Torah Inst., Inc., 170 AD3d 697, 698-699 [2d Dept 2019]). As such, a fact issue remains as to whether providing the subject dock plate qualified as maintaining the property in a safe condition. The surveillance video submitted in support of this motion was not considered by the court, as it was not authenticated (see Zegarelli v. Hughes, 3 NY3d 64 [2004]; Dunn v. New Lounge 4324, LLC, 180 AD3d 510 [2d Dept 2020]). Additionally, had it been properly authenticated, contrary to defendants’ statement that it “irrefutably…conclusively demonstrates plaintiff’s conduct was the sole proximate cause of his accident,” such conclusion was not “clearly demonstrated” in the video (Quinones v. 2074 White Plains Rd. Bldg., LLC, 180 AD3d 721, 722 [2d Dept 2020]; see Monroy v. Lexington Operating Partners, LLC, 179 AD3d 1053 [2d Dept 2020]). For basically the same reasons, the branch of the motion seeking summary judgment on behalf of Goodwill is denied. While Goodwill is not the owner of the property, its leasehold incorporates the loading docks, and assigns to the tenant the duty to maintain said loading dock area in a safe condition. Goodwill has not demonstrated that the condition of the missing bumpers was not created by it, or that the allegation that the dock plate it provided was inadequate for the purpose intended was not a fact. As determined above, the claim that the alleged “gap” represented an open and obvious condition, has not been shown. With respect to a defendant’s motion for summary judgment, the evidence should be liberally construed in a light most favorable to the non-moving plaintiff (see Monroy v. Lexington Operating Partners, LLC, 179 AD3d 1053 [2d Dept 2020]; Rivera v. Town of Wappinger, 164 AD3d 932 [2d Dept 2018]: Boulos v. Lerner-Harrington, 124 AD3d 709 [2d Dept 2015]). As defendants have failed to resolve all factual issues as a matter of law, conclusively disposing of plaintiff’s claims (see Sciadone v. Stepping Stones Associates, L.P., 148 AD3d 953 [2d Dept 2017]), they are not entitled to summary judgment, and their motion seeking summary judgment dismissing the complaint is denied (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Poulin v. Ultimate Homes, Inc., 166 AD3d 667 [2d Dept 2018];, Rokach v. Taback, 148 AD3d 1195 [2d Dept 2017]). The defendants’, and third-party defendant’s, remaining arguments and contentions either are without merit or need not be addressed in light of the foregoing determinations. Accordingly, third-party defendant’s motion, and defendants’ motion, both seeking summary judgment dismissing the complaints as against each of them, are denied. Dated: September 16, 2020
