The following e-filed documents for Motion Sequences 07, 08, 09 and 10 listed by NYSCEF document numbers “210,” “211,” “237,” “239,” “241,” “242,” “263,” “264,” “270,” “271,” “272,” “291,” “292,” “307,” “312,” “313,” “314,” “316,” “317,” “318,” “320,” “321,” “323,” “324,” “326,” “329,” “332,” “333,” “335,” “336,” “337,” “338,” “339,” “340,” “341,” “342,” “343,” “344,” “346,” and exhibits have been read on this motion: Motion Sequence 07 Notice of Motion and Affidavits/Affirmations (Airport Plaza, LLC and Kimco Realty Corporation) X Memorandum of Law in Support X Affidavit/Affirmation in Opposition (Plaintiff) X Memorandum of Law in Opposition (Plaintiff) X Affidavit/Affirmation in Opposition (U.S. Champ Inc. d/b/a Excel Commercial Maintenance and OP Snow Inc.) X Reply Affidavits/Affirmations X Motion Sequence 08 Notice of Motion and Affidavits/Affirmations (Stew Leonards’ Farmingdale LLC) X Affidavit/Affirmation in Opposition (Plaintiff) X Memorandum of Law in Opposition (Plaintiff) X Reply Affidavit/Affirmation X Motion Sequence 09 Notice of Motion and Affidavits/Affirmations (U.S. Champ Inc. d/b/a Excel Commercial Maintenance and OP Snow Inc.) X Affidavit/Affirmation in Opposition (Plaintiff) X Affidavit/Affirmation in Opposition Airport Plaza, LLC and Kimco Realty Corporation) X Reply Affidavit/Affirmation X Motion Sequence 10 Notice of Motion and Affidavits/Affirmations (Plaintiff) X Affidavit/Affirmation in Opposition (Airport Plaza, LLC and Kimco Realty Corporation) X Affidavit/Affirmation in Opposition Stew Leonards’ Farmingdale LLC) X Affidavit/Affirmation in Opposition (U.S. Champ Inc. d/b/a Excel Commercial Maintenance and OP Snow Inc.) X Reply Affidavits/Affirmations X Background The plaintiff commenced this action against the defendants on or about March 1, 2021 alleging a cause of action sounding in negligence. The plaintiff’s Amended Verified Complaint provides that the plaintiff was walking in the parking lot and roadway in front of 261 Airport Plaza Boulevard, Farmingdale, New York owned by defendant Airport Plaza, LLC (“Airport Plaza”) and managed by defendant Kimco Realty Corporation (“Kimco”) when he was caused to slip and fall on a “dangerous, hazardous and trap-like icy condition” on December 26, 2020, which resulted in personal injuries. The plaintiff testified that he slipped and fell on a patch of ice “approximately, three feet wide by about two feet long,” oval in shape. The plaintiff, by way of Amended Verified Complaint, alleges that defendant Stew Leonard’s Farmingdale, LLC (“Stew Leonard’s”) leased property from Airport Plaza including the parking lot and roadway where the plaintiff fell. The plaintiff alleges that the defendant U.S. Champ Inc. d/b/a Excel Commercial Maintenance (“U.S. Champ”) entered into a contract with Kimco whereby U.S. Champ agreed to perform all snow and ice removal services for the common areas owned by Airport Plaza, including the parking lot. The plaintiff alleges that U.S. Champ allegedly transferred its’ snow and ice removal obligations to OP Snow Inc. (“OP Snow”) pursuant to a subcontract. The plaintiff also alleges that Airport Plaza, Kimco, Stew Leonard’s, U.S. Champ, and OP Snow maintained, inspected, shoveled, cleared, cleaned, sanded and/or salted the subject area and parking lot where the plaintiff fell. Motion Sequence 07 Airport Plaza and Kimco move this Court (Motion Sequence 07) jointly for an order granting them summary judgment dismissing the plaintiff’s complaint and any and all cross claims against them and granting summary judgment on their cross claims for contractual indemnification, common law indemnification, breach of contract and contribution as and against U.S. Champ and OP Snow. The plaintiff opposes the motion. U.S. Champ and OP Snow collectively oppose the motion. Airport Plaza and Kimco submit replies in response to the opposition. Airport Plaza and Kimco argue, inter alia, that the plaintiff has failed to present any evidence or testimony establishing that they either created or had actual or constructive notice the icy condition. Airport Plaza and Kimco contend that that the plaintiff is the “sole and proximate cause of his accident, since he observed and walked around the ice condition twice just moments” before the plaintiff walked on the ice, slipped and fell. With respect to their cross claim, Airport Plaza and Kimco assert that they relinquished all snow and ice “removal, maintenance, monitoring and inspections” pursuant to an agreement with U.S. Champ, which they argue provides that U.S. Champ was “solely responsible” for removing snow and ice from the parking lot “at the onset of accumulating snow, drifting or ice conditions.” The movants submit that the agreement between Airport Plaza and U.S. Champ provides that U.S. Champ agreed to indemnify and hold Airport Plaza and Kimco harmless for any claims arising out of the contact. The movants also submit that U.S. Champ entered into a subcontract with OP Snow whereby U.S. Champ transferred its obligation to remove snow and ice from the parking lot to OP Snow and provided an indemnification clause for the benefit of Airport Plaza. This Court recognizes that summary judgment is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issues of fact. (Andre v. Pomeroy, 35 N.Y.2d 361). The proponent of a motion for summary judgment does not satisfy this burden by merely pointing to evidentiary gaps in the plaintiff’s proof. (Nationwide Prop. Cas. v. Nestor, 6 AD3d 409). Only after the movant meets its burden does it shift to the opposing party to proffer evidence in admissible form raising a triable issue of fact. (Alvarez v. Prospect Hosp., 68 NY2d 320). Should the proponent of a motion for summary judgment fail to meet its initial burden of demonstrating entitlement to summary judgment as a matter of law (Id.), the burden does not shift to the opposing party to establish the existence of a material fact which would require a trial (Greenberg v. Coronet Prop. Co., 167 AD2d 291), and as so, the court would not need to address the sufficiency of the opposition papers. (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851). “[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings.” (Miller v. Village of East Hampton, 98 AD3d 1007, citing Foster v. Herbert Slepoy Corp., 76 AD3d 210). Here, the plaintiff’s Verified Bill of Particulars includes allegations that Airport Plaza and Kimco created the icy condition, had actual and constructive notice of the icy condition, “a recurrent condition,” whereby they “failed to provide proper and/or adequate drainage to prevent a recurring condition in which water pooled and/or remained in the same location where plaintiff slipped and fell” and “failed to recognize the existence of a recurrent condition of water, snow and/or ice which accumulated in the same location after each snowfall or precipitation event.” Airport Plaza and Kimco fail to offer any documentation whatsoever to address these allegations in their moving papers. Rather Airport Plaza and Kimco claim that the plaintiff offered “conclusory speculation regarding the alleged recurring condition, or that Kimco knew or should have known about it.” Airport Plaza’s and Kimco’s burden cannot be satisfied by merely poking holes at the plaintiff’s action by pointing out the gaps in the plaintiffs’ case. (Nationwide Prop. Cas., 6 AD3d at 409). As the moving defendants failed to eliminate all triable issues of fact as a matter of law as to whether they affirmatively created the alleged condition, or had actual or constructive notice, they have not met their burden, and the motion should be denied without regard to the sufficiency of the opposition by the plaintiff and U.S. Champ and OP Snow. (Miller, supra). Considering Kimco has not established its freedom from negligence, its request for a finding of summary judgment on its cross claims for contractual indemnification, common law indemnification, breach of contract and contribution as and against U.S. Champ and OP Snow is premature. (Jamindar v. Uniondale Union Free School Dist., 90 A.D.3d 612, 616). Motion Sequence 08 Stew Leonard’s moves this Court (Motion Sequence 08) for an order granting it summary judgment on the issue of negligence and dismissing all claims against it. The plaintiff opposes the motion and Stew Leonard’s submits a reply. Stew Leonard’s argues that it owes no duty to the plaintiff as Stew Leonard’s did not “lease, own, operate, manage, and/or control” the area where the plaintiff fell, and did not create the icy condition that allegedly caused the plaintiff to slip and fall. Stew Leonard’s points out that the plaintiff’s Verified Bill of Particulars provides that the plaintiff fell in the roadway directly in front of the premises known as Stew Leonard’s, more particularly, between the island designated as Parking Area D and the front entrance of Stew Leonard’s. In support of its argument that Stew Leonard’s neither leased nor owned the subject area where the plaintiff fell, Stew Leonard’s asserts that its’ lease agreement with Airport Plaza describes where Stew Leonard’s leased space ends and where the “common areas” are. Specifically, the common areas are allegedly located across from Stew Leonard’s store and includes the area where the plaintiff fell. Regarding Stew Leonard’s management and control over the subject area and parking lot where the plaintiff fell, Stew Leonard’s maintains that its lease agreement obligated Airport Plaza, the owner, and Kimco, Airport Plaza’s property manager, to maintain the “common area” and subject area in good repair and ensure that it was free of snow and ice. Stew Leonard’s maintains that Airport Plaza and Kimco exercised this obligation by entering into a contract with U.S. Champ to clear snow and ice from the subject area and parking lot where the plaintiff fell. Furthermore, Stew Leonard’s contends that it did not create the ice condition that caused the plaintiff to fall. Stew Leonard’s submits and relies on the expert affidavit of Kevin Williams, who is a meteorologist, in support of this contention. Mr. Williams’ affidavit states that, as part of his investigation as to the weather conditions at the time and location of the plaintiff’s accident, Mr. Williams analyzed hourly surface observations from Farmingdale Republic Airport and Islip MacArthur Airport, cooperative observers Centerport and Syosset, National Weather Service statements, Doppler radar imagery, surface weather charts NOAA snow analysis as well as deposition transcripts, video and photographs. Mr. Williams found that, based upon a reasonable degree of meteorological certainty, that the subject accident resulted from pooling water and not any actions of its employees or agents” providing that “any accumulation of water and/or ice at the scene of the accident was the result of water pooling and perhaps subsequent freezing,” the air temperature in and around the vicinity where the plaintiff fell was approximately 33 degrees on the day that the plaintiff fell, the “ground was bare of natural snow cover” and there were “no official winter weather warnings, watches or advisories in affect.” With respect to the weather conditions prior to the plaintiff’s accident, Mr. Williams stated that the air temperature ranged from approximately 24 to 33 degrees between midnight and the time that the plaintiff fell and there was no precipitation since midnight. On December 25, 2020, the day before the plaintiff fell, Mr. William stated that there was rainfall in the morning and early afternoon that totaled three quarters of an inch and the temperature fell from 60 degrees at daybreak to 32 degrees shortly before midnight. Moreover, Mr. Williams noted that the last snow cover occurred on December 23, 2020 but none of the snow would have remained in the area where the plaintiff fell on December 26, 2020. It is well settled that “[p]remises liability, as with liability for negligence generally, begins with duty, the extent and existence of which is a question of law.” (Garcia v. Town of Babylon Indus. Dev. Agency, 120 AD3d 546, 548). “As a general rule, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property. Thus, a tenant’s common-law duty to maintain premises in a reasonably safe condition is limited to those areas which it occupies and controls, or makes a special use.” (Knight v. 177 W. 26 Realty, LLC, 173 AD3d 846, 847; Montalvo v. Texas Roadhouse Holdings, LLC, 200 AD3d 986). “Special use cases usually involve the installation of some object in the sidewalk or street or some variance in the construction, such as an appurtenance installed for the benefit of the owner or lessee at its request.” (Yee v. Chang Xin Food Mkt., Inc., 302 AD2d 518, 519). “The existence of one or more of these elements is sufficient to give rise to a duty of care. Where none is present, [generally] a party cannot be held liable for injuries caused by the [allegedly] defective condition.” (Misa v. Town of Brookhaven, __ AD3d __, 2023 NY Slip Op 00316, *1). Here, the Stew Leonard’s lease agreement with Airport Plaza establishes that the area where the plaintiff fell is part of the common area owned by Airport Plaza, and not the area Stew Leonard’s leased or was required to perform snow removal. In addition, Stew Leonard’s established through the testimony of Kimco’s property manager, Morgan Nuss, that Kimco handles the repair and maintenance of the “common areas,” including the subject parking lot where the plaintiff fell. Ms. Nuss testified that Kimco was hired by Airport Plaza to repair and maintain the common areas of the shopping center. Specifically, Ms. Nuss stated that Kimco handles parking lot repairs as well as snow and ice removal among other management services. In addition, Stew Leonard’s produced Rob Jevarjian, Director of Support, and Joseph Lisk, Store Manager, to testify on its behalf. Mr. Jevarjian testified that Stew Leonard’s store manager is responsible for keeping the sidewalk directly in front of Stew Leonard’s free of snow and ice. However, if there was a snow and ice condition in the subject area and parking lot where the plaintiff fell, Mr. Jevarjian stated that Stew Leonard’s would contact Kimco. Similarly, Mr. Lisk testified that part of his responsibility was to ensure that the sidewalk directly in front of Stew Leonard’s store was free of snow and to salt the sidewalk for ice. Mr. Lisk also stated that Stew Leonard’s never cleared snow and ice beyond the sidewalk because Kimco was responsible for the subject area where the plaintiff fell and road in front of the store. Mr. Jevarjian’s and Mr. Lisk’s testimony establishes that although Stew Leonard’s was responsible for clearing the sidewalk directly in front of its store, Kimco was responsible for clearing the subject area and parking lot where the plaintiff fell of snow and ice. Consequently, Stew Leonard’s established that it does not own, maintain or control the subject area and parking lot where the plaintiff fell. Stew Leonard’s has shown that it did not create the subject ice condition. Mr. Williams’ affidavit provides that the ice condition upon which the plaintiff fell was caused by rainfall that pooled and refroze on December 25, 2020, not from Stew Leonard’s snow and ice removal efforts performed on the sidewalk in front of the area that Stew Leonard’s leased. Therefore, Stew Leonard’s established its prima facie entitlement to summary judgment as a matter of law by demonstrating that it neither created the ice condition nor owned, occupied, or controlled of the subject area and parking lot where the plaintiff fell and the burden shifts to the plaintiff to raise a material issue of fact. (Andre, 35 N.Y.2d at 361; Yu Ying Zhi, 189 AD3d at 940-941; Alvarez, 68 NY2d at 320). In opposition, the plaintiff raised material questions of fact as to whether Stew Leonard’s maintained the subject area and parking lot where the plaintiff fell. The plaintiff argues that Section 8 (Common Area) of Stew Leonard’s lease agreement grants Stew Leonard’s and its customers the right to use or benefit from the Common Area, which is defined as the areas of the Shopping Center made available by Airport Plaza for the benefit of Stew Leonard’s and its customers and invitees including the subject area and parking lot where the plaintiff fell. In addition, the plaintiff argues that Stew Leonard’s has the right to make any repairs on Airport Plaza’s behalf to any portion of the common area, including the subject area and parking lot where the plaintiff fell, if Airport Plaza fails to make a repair that “would have a material or detrimental impact on [Stew Leonard's] ability to operate its business” under Section 10(b) of the lease agreement. The plaintiff raised a question of fact regarding whether Stew Leonard’s had occupancy and special use of the subject area and parking lot where the plaintiff fell. Mr. Lisk testified that there are two shopping cart corrals located in the subject area and parking lot where the plaintiff fell. The shopping cart corrals located in the parking lot in between the parking spaces can be seen in the videotape footage submitted in support of the instant motions and appear to be covered on the top and at the four corners of the corral. Mr. Lisk’s testimony that Stew Leonard’s instructed its employees to collect the shopping carts raises a question of fact as to whether Stew Leonard’s the shopping corrals are appurtenances to the parking lot from which Stew Leonard’s derives a benefit. (Yee, 302 AD2d at 519). Mr. Lisk also testified that Stew Leonard’s erected and tents in the subject area parking lot where the plaintiff fell in the spring and winter to sell plants and Christmas trees. Notably, the plaintiff fell on December, 26, 2020, one day after Christmas. As such, a question of fact is raised regarding whether Stew Leonard’s maintained, occupied or controlled the subject area and parking lot where the plaintiff fell. (Welwood v. Assn. for Children with Down Syndrome, 248 AD2d 707; Garcia, 120 AD3d at 548). As already provided, “[a]s a general rule, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property. Thus, a tenant’s common-law duty to maintain premises in a reasonably safe condition is limited to those areas which it occupies and controls, or makes a special use.” (Knight, 173 AD3d at 847; Montalvo, 200 AD3d at 986). “The existence of one or more of these elements is sufficient to give rise to a duty of care. Where none is present, [generally] a party cannot be held liable for injuries caused by the [allegedly] defective condition.” (Misa v. Town of Brookhaven, ___ AD3d ___, 2023 NY Slip Op 00316, *1). Under these circumstances, the plaintiff has raised an issue of fact warranting denial of Stew Leonard’s motion for summary judgment. Motion Sequence 09 U.S. Champ and OP Snow move this Court (Motion Sequence 09) jointly for an order granting them summary judgment and dismissing the plaintiff’s complaint and all cross claims asserted against them. The plaintiff and Kimco oppose the motion. U.S. Champ and OP Snow submit a reply. U.S. Champ and OP Snow argue that they are entitled to summary judgment as a matter of law because the ice condition that the plaintiff to fall on was allegedly caused by a defect in the pavement, which is Kimco’s responsibility to maintain, and, in any event, the plaintiff was the proximate cause of his injuries as the defect was open and obvious. U.S. Champ and OP Snow also claim that they do not owe the plaintiff a duty because the plaintiff was not a party to their snow and ice contract with Kimco and none of the exceptions set forth in Espinal v. Melville Snow Contrs., 98 NY2d 136, apply. In particular, U.S. Champ and OP Snow assert that the plaintiff testified he saw the patch of ice he fell on twice before he fell, once before the plaintiff fell as he was headed towards Stew Leonard’s and when the plaintiff was returning to his car to retrieve shopping bags. U.S. Champ and OP Snow argue that the plaintiff’s testimony that he saw the ice and walked around it twice before falling demonstrates that the plaintiff was the proximate cause of his injuries. In addition, Kimco’s property manager, Ms. Nuss, testified that Kimco used several different contractors to maintain the common area and parking lot such as landscapers and pavers. Ms. Nuss stated that she inspects the premises 3-4 times per month and if she were to notice a defect in the pavement, she would arrange to have the defect remedied. Since U.S. Champ’s and OP Snow’s argue that their contracts were seasonal and Kimco hired different contractors to maintain the property, U.S. Champ and OP Snow could not have displaced Kimco’s responsibility to clear the subject area and parking lot where the plaintiff fell of snow and ice. In addition, U.S. Champ and OP Snow maintain that the plaintiff could not have detrimentally relied on their contracts because the plaintiff testified that he was unaware the contracts existed. U.S. Champ and OP Snow argue that they did not launch a force or instrument of harm to create the ice condition but was instead a passive omission. In support of their argument, Gustave Wade, who owns OP Snow, testified that no services were performed in the subject area and parking lot where the plaintiff fell between December 23, 2020 and December 26, 2020 when the plaintiff fell. U.S. Champ and OP Snow also rely on the expert affidavit of Pericles Stivaros, PE, an engineer. Mr. Stivaros visited the subject area and parking lot where the plaintiff fell, reviewed photos, videos of the plaintiff’s accident and weather records for the area in and around where the plaintiff fell. Mr. Stivaros states that is observation and inspection of the subject area resulted in a finding of a ponding of approximately “nine feet across with the depth of the ponding vary9ing between 1/8 to 3/8″ whereby “the asphalt top surface slopped towards the center of the ponding area .8 degrees,” allowing “water to collect and become trapped in the depressed area.” Mr. Stivaros opines within a reasonable degree of engineering certainty, that “the rain the evening before the accident ponded in the area of plaintiff’s fall and froze due to a defective pavement condition that allowed water to collect in the particular location.” It is well established that the breach of a contractor’s contractual obligation does not give rise to tort liability to others not in privity with the contractor, as the duty flows between only the parties to the contract. (Santos v. Deanco Servs., Inc., 142 AD3d 137, 138). However, there are three exceptions to this general rule: “(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] 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.” (Arnone v. Morton’s of Chicago/Great Neck, LLC, 183 AD3d 862, 862-863). “These exceptions have collectively and colloquially come to be known in New York as the Espinal exceptions.” (Santos v. Deanco Servs., Inc., 142 AD3d 137, 138). While U.S. Champ’s and OP Snow’s moving papers addresses each of the Espinal exceptions, the Court is not persuaded that they have eliminated all questions of fact with respect to the applicability of the third exception. (Arnone, 183 AD3d at 862-863). U.S. Champ’s and OP Snow’s argument that their contracts “could not possibly be ‘comprehensive and exclusive’ so as to entirely displace the duty of Kimco to maintain the [P]remises” because Ms. Nuss testified that Kimco used different contractors to maintain the subject area and parking lot where the plaintiff fell including landscaping and paving contractors is speculative at best. Kimco retaining different contractors to perform paving and landscaping maintenance alone is not enough to show that the snow and ice removal contracts at issue did not entirely absorb Kimco’s duty to maintain the subject area and parking lot where the plaintiff fell. (Espinal, 98 NY2d at 136). In any event, as argued by the plaintiff, U.S. Champ and OP Snow neither annexed copies of U.S. Champ’s contract with Kimco and OP Snow’s subcontract with U.S. Champ nor do they point to testimony or provisions of the subject contracts that demonstrate U.S. Champ and OP Snow and did not displaced Kimco’s duty to maintain the subject area and parking lot where the plaintiff fell. Therefore, U.S. Champ’s and OP Snow’s arguments are unsubstantiated, and they have not eliminated all issues of fact regarding the applicability of the Espinal exceptions. (Arnone at 862-863). Since U.S. Champ and OP Snow have not eliminated all material issues of fact regarding the applicability of the Espinal exceptions, U.S. Champ’s and OP Snow’s motion for summary judgment should be denied. Assuming, arguendo, that U.S. Champ and OP Snow met their burden, the plaintiff raises a triable issue of fact. The plaintiff testified that he saw the sheet of ice and walked around it when he was walking towards his vehicle. However, the plaintiff also testified that he did not notice the sheet of ice when he first walked towards Stew Leonard’s because he walked around the ice and, as so, only saw the ice when he fell. “On a motion for summary judgment the court must not weigh the credibility of witnesses unless it clearly appears that the issues are feigned and not genuine,” and “[a]ny conflict in the testimony or evidence presented merely raise[s] an issue of fact.” (Pryor & Mandelup, LLP. v. Sabbeth, 82 A.D.3d 731, citing 6243 Jericho Realty Corp. v. AutoZone, Inc., 27 A.D.3d 447; Chase v. Skoy, 146 A.D.2d 563). Based on the conflicting testimony, the plaintiff raises an issue of fact as to when he first noticed the ice condition that the plaintiff fell on. (Id.). According to Ms. Nuss’ testimony, Kimco exclusively contracted with U.S. Champ to perform all of the snow and ice removal for the common areas, including the subject area and parking lot where the plaintiff fell. In addition, Ms. Nuss also testified U.S. Champ’s obligations under the contract included shoveling, plowing and salting/sanding as well as monitoring the weather to determine if snow and/or ice removal services were necessary. Ms. Nuss stated that there was no minimum accumulation required to trigger U.S. Champ’s services. As a result, Ms. Nuss stated that Kimco neither maintained snow removal equipment nor inspected the common area and/or the parking lot after snow and ice removal services were performed. With respect to OP Snow’s obligations, Gustave Wade, who owns OP Snow testified that OP Snow was subcontracted by U.S. Champ to perform all snow and ice removal of the common area and the parking lot. Mr. Wade also testified that Kimco was not required to call OP Snow to request that snow and ice removal be performed under its subcontract. Instead, OP Snow was required to monitor the weather conditions to determine if the snow removal services were necessary and there was no minimum amount of accumulation that triggered said services. Therefore, the plaintiff raises a question of fact as to whether U.S. Champ and OP Snow displaced Kimco’s duty to maintain the subject area and parking lot where the plaintiff fell free of snow and ice, which would warrant dismissal of U.S. Champ’s and OP Snow’s motion for summary judgment. (Id.). Motion Sequence 10 The plaintiff cross moves (Motion Sequence 10) for an order (1) striking stew Leonard’s answer for failing to preserve video footage of the scene of the incident requested in the plaintiff’s January 20, 2021 spoliation letter, or (2) finding for the plaintiff on the issue of notice or offering any evidence in support or opposition to a summary judgment motion or at the time of trial concerning notice of the icy condition, the plaintiff’s actions from the time he entered the parking lot until the time the video previously exchanged started or introducing any portion of Stew Leonard’s Security Incident Report which describes the plaintiff’s movements from the time he entered the parking lot until the time the video previously exchanged started at 2:55:13, or (3) directing that an adverse inference charge be given against Stew Leonard’s at the time of trial in the issue of notice and ordering Stew Leonard’s to reimburse the plaintiff for the cost of a meteorological expert and used to oppose the defendants’ summary judgment motions and provide expert testimony at the time of trial, and (4) precluding Stew Leonard’s from offering any evidence in support or opposition to a summary judgment motion and at the time of trial for their failure to supply court ordered Daily logs or respond to the plaintiff’s July 20, 2022 post-deposition Notice for Discovery and Inspection. Stew Leonard’s and Kimco submit opposition to the cross motion. U.S. Champ and OP Snow submit partial opposition to the cross motion. The plaintiff submits a reply. The plaintiff asserts that a spoliation letter was served on Stew Leonard’s on January 25, 2021, which stated that the plaintiff was injured on the parking lot and, as so, any “videotape depicting the parling lot near the front entrance” of Stew Leonard’s store “will be critical” to the plaintiff’s lawsuit against Stew Leonard’s. The spoliation letter further requested that Stew Leonard’s “preserve all video recordings depicting the front entrance to your store and the parking lot for December 25, 2020 and December 26, 2020.” The plaintiff maintains that Nicholas Giovanniello, Stew Leonard’s security guard, prepared an incident report after viewing approximately nineteen minutes of video footage beginning when the plaintiff entered the parking lot and ending when the plaintiff was removed by an ambulance. However, during the discovery phase of this proceeding, Stew Leonard’s allegedly produced two redacted video clips of the plaintiff’s accident, “totaling four minutes and fifty-two (4:52) seconds” and claimed that the remaining footage requested by the plaintiff was deleted after thirty days. Therefore, the plaintiff asserts he has been prevented from establishing the length of time the ice condition existed, whether any preventative measures were taken by the defendants to remedy the ice condition, whether any of Stew Leonard’s employees were present at or near the ice condition prior to the plaintiff’s accident, and whether any of the defendants took remedial actions after the plaintiff’s accident by not having the entirety of the video recording. With respect to Stew Leonard’s Daily Logs, the plaintiff contends that pursuant to this Court’s decision and order, dated March 28, 2022, Stew Leonard’s was required to turn over to the plaintiff three years of its Daily Logs on or before April 28, 2022, but only produced portions of its security logs and none of its Daily Logs. Where crucial evidence has been negligently destroyed, spoliation sanctions are appropriate. (Kirkland v. New York City Housing Authority, 236 AD2d 170). One party’s negligent loss of evidence can be just as fatal to another party’s liability to present a defense as the willful destruction of evidence. (Squitieri v. City of New York, 248 AD2d 201). Where a party intentionally or negligently destroys essential physical evidence “such that its opponents are ‘prejudicially bereft of appropriate means to confront a claim with incisive evidence,’ the spoliator may be sanctioned by the striking of its pleading. (New York Cent. Mut. Fire. Ins. Co. v. Turnerson’s Elec., 280 AD2d 652, citing, DiDomenico v. C&S Aeromatik Supplies, Inc., 252 AD2d at 53). In determining the appropriate sanction, the essential issue is the resulting prejudice to the adversary. (Conderman v. Rochester Gas & Electric, 236 AD2d 170). In cases where the spoiled evidence is not crucial to a litigant’s case, such that its absence does not prevent the outright prosecution or defense of a case, preclusion of evidence, rather than outright dismissal of pleadings, is the preferred remedy. (Shea v. Spellman, 2004 NY Slip. Op. 50785(U), citing Longo v. Armor Elevator Co., 278 AD2d 127). In support of the motion, the plaintiff submits an affidavit by Mr. Giovanniello, which states that he reviewed Stew Leonard’s security camera footage of the plaintiff’s accident on the date that the plaintiff’s spoliation letter was received by Stew Leonard’s. Mr. Giovanniello’s affidavit also states that he filled out an incident report, noted this incident in the Daily Log, and copied and forwarded the video footage to Monica Herrera, who testified that she was solely responsible for obtaining video footage from Stew Leonard’s security guards and forwarding same to Stew Leonard’s insurance company. In addition, on the date the spoliation letter was received. Mr. Giovanniello “would have been able to retrieve any video footage taken on December 25, 2020 and December 26, 2020, as video footage was automatically retained for at least two (2) months.” As such, the plaintiff has established that he was deprived of an opportunity to inspect and examine Stew Leonard’s Daily Logs and the videotape footage depicting the length of time the icy condition may have existed and whether any preventative or remedial measures were taken. Stew Leonard’s arguments in opposition that the only logs in its possession were turned over, the video viewed by Ms. Herrera was produced several times, and any additional video footage requested by the plaintiff was deleted are unavailing in light of Mr. Giovanniello’s affidavit and the testimony before the Court. While the plaintiff has not demonstrated that the spoliation of such evidence was willful, intentional or in bad faith, Stew Leonard’s has not offered an affidavit to demonstrate that the Daily Logs do not exit or what reasonable steps, if any, were taken in an effort to preserve the requested video footage. Accordingly, Stew Leonard’s has failed to preserve the evidence in this matter and the failure to preserve same has deprived plaintiff, the non-responsible party, of a means of establishing his claim, but certainly, not of all means of establishing his claim. (Shea, 2004 NY Slip. Op. 50785(U)). The plaintiff has not demonstrated the inability to prosecute his claim against the defendants without the submission of the video footage as the plaintiff was able to raise questions of fact by relying on the witnesses’ testimony and the affidavit of the plaintiff’s meteorological expert. (Id.). The plaintiff’s claim is, however, hindered as plaintiff has not been given the opportunity to inspect and examine such Daily Logs and video footage. Under these circumstances, the appropriate remedy is not the striking of Stew Leonard’s answer, or preclusion, but rather the lesser sanction of imposing the charge, Pattern Jury Instruction (PJI) 1:77.1, at the time of trial. Regarding costs incurred in connection with retaining a meteorological expert, the Court agrees with Stew Leonard’s position that the production of the entire requested video would not have entirely eliminated the plaintiff’s need to retain an expert in defense of the summary judgment motions at bar and in prosecution of his claim at trial. Thus, reimbursement of the cost the plaintiff incurred to retain a meteorological expert is inappropriate and not warranted. Upon the foregoing, it is hereby ORDERED, that Airport Plaza’s and Kimco’s motion (Motion Sequence 07) for an order granting them summary judgment dismissing the plaintiff’s complaint and any and all cross claims against them and granting summary judgment on their cross claims for contractual indemnification, common law indemnification, breach of contract and contribution as and against defendants U.S. Champ and OP Snow is denied, and it is further ORDERED, that Stew Leonard’s motion (Motion Sequence 08) for an order granting it summary judgment on the issue of negligence and dismissing all claims against it is denied, and it is further ORDERED, that U.S. Champ’s and OP Snow’s motion (Motion Sequence 09) for an order granting them summary judgment and dismissing the plaintiff’s complaint and all cross claims asserted against them is denied, and it is further ORDERED, that the branch of the plaintiff’s motion (Motion Sequence 10) for an order striking stew Leonard’s answer for failing to preserve video footage of the scene of the incident requested in the plaintiff’s January 20, 2021 spoliation letter is denied, and it is further ORDERED, that the branch of the plaintiff’s motion (Motion Sequence 10) for an order finding for the plaintiff on the issue of notice or offering any evidence in support or opposition to a summary judgment motion or at the time of trial concerning notice of the icy condition, the plaintiff’s actions from the time he entered the parking lot until the time the video previously exchanged started or introducing any portion of Stew Leonard’s Security Incident Report which describes the plaintiff’s movements from the time he entered the parking lot until the time the video previously exchanged started at 2:55:13 is denied, and it is further ORDERED, that the branch of the plaintiff’s motion (Motion Sequence 10) for an order directing that an adverse inference charge, to wit PJI 1:77.1, be given against Stew Leonard’s at the time of trial on the issue of notice is granted, and it is further ORDERED, that the branch of the plaintiff’s motion (Motion Sequence 10) for an order directing Stew Leonard’s to reimburse the plaintiff for the cost of a meteorological expert and used to oppose the defendants’ summary judgment motions and provide expert testimony at the time of trial is denied, and it is further ORDERED, that the branch of the plaintiff’s motion (Motion Sequence 10) seeking an order precluding Stew Leonard’s from offering any evidence in support or opposition to a summary judgment motion and at the time of trial for their failure to supply court ordered Daily logs or respond to the plaintiff’s July 20, 2022 post-deposition Notice for Discovery and Inspection is denied. The foregoing constitutes the Order of this Court. Dated: February 1, 2023
