In this slip and fall personal injury action, third-party defendant, Pritchard Industries, Inc. ("Pritchard") moves for summary judgment dismissing the third-party complaint of 100 Property LLC, Hiro Real Estate Co. and Craven Management, Corp. ("defendants" or "defendants/third-party plaintiffs").

Factual Background

On January 22, 2007, plaintiff Shefkije Kukaj ("plaintiff") was working as a "maintenance" day porter for Pritchard, the cleaning subcontractor, at 100 Broadway, when she slipped and fell in the bathroom on the 19th floor. After commencing her action against defendants, defendants commenced a third party action against Pritchard, alleging claims for negligence (first cause of action), contribution based on negligence (second cause of action), contractual and common law indemnification (third and fourth causes of action), and for failure to procure insurance (fifth cause of action).

According to plaintiff's testimony, she was checking a bathroom stall next to the handicapped stall to see if it needed cleaning or paper replacement. Plaintiff's duties as a day porter did not include mopping or cleaning the bathroom floors, but was limited to cleaning [*2]mirrors, replenishing toilet paper and towel paper, cleaning the sink, and disposing of bathroom garbage. As she stepped into the stall, her right foot slipped causing her to fall. After plaintiff fell, she saw water "around the toilet all the way to the front, a little bit to the handicapped" stall, which was coming from a pipe attached to the toilet.

Plaintiff testified that she had seen water leaking from this pipe on other occasions. The first time plaintiff saw this condition in that location was a month before her accident. Plaintiff had complained about the condition to "Juan" at the building and "Mike" the building manager. On the prior occasion, she returned to clean the bathroom the following day and saw water on the floor. However, a "couple of days" later, the water was gone. "Then it started again," a couple of weeks before the accident. Plaintiff told Saranda "the front desk lady" from the "Craven Company." Saranda stated that "we're going to take care of it." The condition "stopped for a little bit, and then it came back again" a few days later. Plaintiff complained again to Saranda, and Saranda said "we're going to fix it." None of plaintiffs' complaints were in writing or were made to Pritchard.

Saranda Gjonbalaj ("Saranda") was employed by Craven Management as a concierge at the building on the day of the accident. One of her duties included taking house calls and complaints about leaks and broken locks. When Saranda received a house call reporting a leak, she would contact an engineer from Craven Management. If the call concerned a minor problem, she would call the morning porters who worked for Pritchard. Plaintiff complained to Saranda about the leak "about two or three times" within weeks prior to the day of the accident. Saranda notified building engineers "Mike Kahn" and Michael Ferraro ("Ferraro") of Craven Management. If there was a leak from a toilet, she would call Ferrero "because that's a leak"; she would not contact "Juan" or "Frank" from Pritchard to repair it because it was not their job to repair the leak; they would be called to "mop[] it dry."

According to Ferraro, the building manager for defendants/third-party plaintiffs, Pritchard was the cleaning contractor at the building which provided the porters to clean the building. The porters were responsible for maintaining the lobby outside the building and cleaning and mopping floors in the common areas of the building. Ferraro testified that, "day porters would only mop a bathroom if there was water reported on the floor. The night porters clean the bathrooms." The night shift was from 5:00 p.m. to midnight. Mopping would only be done by a day porter if there was a "house call, if there was a leak, per se." The engineers in the building were responsible for daily maintenance, including plumbing, HVAC, and minor repairs. "If a pipe bursts, an engineer would be called." A repair was made to a toilet in the 19th floor ladies' room by building engineers on the day after plaintiff's accident.

Juan Sabala ("Sabala"), a day porter for Pritchard at the time of the accident, testified that if he ever saw a pipe leaking or water condition in a bathroom at the building, he would mop it and verbally report it to the building's engineers. Sabala never reported any water leaks in the 19th floor ladies' room to the building engineers or to the building lobby desk. According to Sabala, night porters were responsible for cleaning and mopping the bathroom floors.

In support of its motion, Pritchard contends that plaintiff was an employee of Pritchard performing the duties of her job when she was allegedly injured, and received workers compensation from Pritchard. According to the New York State Workers Compensation Law Section 11, a third party action sounding in negligence for common-law contribution or [*3]indemnification cannot be maintained against plaintiff's employer unless plaintiff sustained a "grave injury" as it is defined by statute. Plaintiff's Bill of Particulars lists her injuries as soft tissue lumbar, soft tissue shoulder and soft tissue cervical spine, all without surgery, but with the possibility of future surgery. Clearly, plaintiff is not alleging a grave injury as that term is defined under the Workers Compensation Law. Accordingly, the causes of action sounding in negligence, contribution and common law indemnification, must be dismissed since plaintiff did not sustain a "grave injury."

Further, as to the contractual indemnification claim, the indemnification clause in effect on the day of the accident requires Pritchard to defend, indemnify and hold harmless defendants/third-party plaintiffs "from and against any and all claims, damages, losses or

expenses....arising out of or as a result of the performance of the Work, and/or any act or omission of the Vendor...." The indemnification clause further states "nothing herein contained shall require the Vendor to provide indemnification against that portion of any liability for claims which are proven to have arisen from the negligence of the party asked to be defended, indemnified or saved harmless." There is no evidence that Pritchard had notice of a wet condition in the 19th floor ladies' room on the day of the accident. There is also no evidence indicating that a written report was ever made to Pritchard regarding the wet condition, either on the day of the accident or at any time prior to the day of the accident. Thus, there is no proof of any negligence on the part of Pritchard for failing to clean the wet floor.

More importantly, the testimony of third-party plaintiffs' witness Ferraro, and third-party plaintiff's former employee Saranda, established that if there was a leak at the time and place of the accident, as plaintiff alleges, it was not Pritchard's responsibility to repair it. Pritchard's contract with defendants/third-party plaintiffs did not require Pritchard to perform any structural repairs or other repairs to defendants/third-party plaintiffs' premises. The contract obligated Pritchard only to perform a schedule of cleaning services to the building and to indemnify the owners for claims arising from the performance of the Work and/or any act or omission of Pritchard. Pritchard was not responsible to make repairs to any toilet leak on premises and that there was no notice to Pritchard of any wet condition in the ladies' room prior to plaintiffs accident. Thus, since the accident did not arise from the performance of Pritchard's work under the contract, or from any act or omission on the part of Pritchard, the third-party action for contractual indemnification alleged against Pritchard must be dismissed.

As to the claim for failure to procure insurance, Pritchard's contract requires Pritchard to name defendants/third-party plaintiffs as additional insureds on all policies of insurance which included Workers' Compensation, Automobile Insurance and Commercial General Liability Insurance. Pritchard's general liability policy covers defendants/third-party plaintiffs as additional insureds as shown in endorsement 20 of the policy. Further, Pritchard provided Workers' Compensation Insurance to its' employees, as evidenced by the fact that plaintiff has made and received payment under Pritchard's Workers' Compensation Insurance plan. And, in regard to the Commercial General Liability Insurance provision, the contract provides an exclusion for general liability claims for the bodily injury of (Vendor's) employee because those injuries are covered by the Workers' Compensation Policy. Thus, plaintiff's status in the instant case requires a dismissal of the third-party claim for breach of the agreement to procure insurance since it is clear from the evidence submitted that Pritchard procured the requisite insurance as [*4]required by contract.

In opposition, third-party plaintiffs argue that the part of the motion seeking dismissal of the third-party contractual indemnification claims must be denied to the extent that there are issues of fact relating to the negligence of Pritchard in the happening of the subject accident.

Although Pritchard argues that it did not receive complaints or have notice of the wet condition and thus, there is no proof of any negligence on the part of Pritchard for failing to clean the wet condition, plaintiff, a Pritchard employee herself, testified that she had seen water coming from a pipe attached to the toilet in the area of her accident on other occasions before her accident. Yet, plaintiff never made any complaints about the water condition to Pritchard. However, she admits that she complained about the condition to someone named "Juan," apparently Juan Sabala, a Pritchard employee. Sabala admitted that, if a tenant called the building's front desk about a problem in one of the bathrooms in the building it would be his or his co-worker's job to respond to the problem. As part of his equipment he would be provided with buckets and mops. If he or another worker from Pritchard saw a leak or water condition on the floor of a bathroom at the building he was instructed to mop up the water and report water leaks to the building engineers. He testified that, prior to the accident, no one made any complaints to him about the floor of the bathroom with regards to water leaks and he denied that the plaintiff herself ever made any such complaints to him about water leaks on the floor of the bathroom. Sabala further testified that Pritchard has day and night shift porters at the building, who were responsible for mopping and cleaning the bathroom floors. Sabala admitted that it was Pritchard's duty to clean up any water conditions in the bathrooms and to report any water-leak conditions to the building management.

Under the indemnification clause, Pritchard, as the vendor, is to indemnify the defendants/third-party plaintiffs for any and all claims and damages arising out of or as a result of the performance of the work and/or any act or omission of Pritchard. There is evidence that Pritchard had notice of a wet condition by plaintiff's complain to "Juan" and that there was an ongoing problem with water in the bathroom. While the defendants/third-party plaintiffs take the position that there was no prior leaking condition, there is a sufficient issue of fact raised by plaintiff's testimony that she complained to "Juan" and to the extent that both the day and night shifts working for Pritchard had the duty to both clean and mop up any wet conditions and to report any such conditions. To the extent that a jury believes that there was an ongoing water condition, a jury could also find that this resulted from Pritchard's work to the extent that Pritchard failed to properly clean or mop up any water condition. Furthermore, to the extent that plaintiff was working for Pritchard at the time of the incident, these actions are sufficient to bring her claim within the scope of the "arising out of" Pritchard's work part of the indemnification language. And, indemnification could be based upon a jury's finding that Pritchard failed to report a water condition to defendants/third-party plaintiffs as it was contractually obligated to do and as confirmed by Sabala.

In reply, Pritchard maintains that the claim of contractual indemnity should be dismissed because there is no evidence that plaintiff's accident occurred through any omission on the part of a Pritchard employee or that the accident arose of the performance of Pritchard's work.

Defendants/third-party plaintiffs' argument that because plaintiff was a Pritchard employee at the time of the accident, the accident must have arisen out of the performance of her [*5]

work, is nonsensical and insufficient to defeat summary judgment. Plaintiff's duties did not include mopping the floors; she was in the bathroom stall for the purpose of replacing a toilet paper roll. Thus, to say that the accident arose from the performance of plaintiff s work would be the same as saying that if plaintiff slipped and fell while walking down the hall to the elevator, that also would have arisen from the performance of her work. Plaintiff fell because of a water leak coming from the toilet fixture. Prior to the accident there was no notice to any party that a water condition existed on the floor in that location. Prior to her falling, plaintiff did not give notice to any party of a water or wet condition on the floor that day. Further, plaintiff specifically said she did not complain to anyone at Pritchard about the leak. Thus, there is no evidence that Pritchard knew of the wet condition and failed to remedy it. Indeed, plaintiff was the first Pritchard employee in the ladies room that day and the first to see the wet condition. There is no evidence that Pritchard was put on notice of the condition by the building or any other person or that Pritchard was asked at any time to send a porter to mop the water condition.

Relative to the water on the floor, even defendants/third-party plaintiffs' own witness Ferrara testified that Pritchard's day porters mop the floor when there is water reported on

the floor, to wit: when the building receives a "house call" that there is water on the floor. There is no evidence that such a house call was received or that anyone made a request for a day porter to mop the floor.

Plaintiff testified that the condition was created by a water leak in the toilet fixture

which she had known about previously. It is not Pritchard's contractual duty to repair such a

leak. Indeed, the defendant/third-party plaintiff building owner has not denied that the toilet leak was their responsibility to repair, and its failure to repair the leak on previous occasions does

not entitle them to pass their liability onto Pritchard.

Defendants/third-party plaintiffs attempt to create a smoke screen by referring to testimony regarding plaintiff's complaints to someone named "Juan". Defendants/third party plaintiffs suggest "Juan" is Pritchard's employee Juan Sabala. However, plaintiff specifically testified that the Juan she complained to wore a "building uniform." Even if plaintiff did complain to Juan on previous occasions about water on the floor, the wet condition that existed on the day of the accident was from an ongoing leak from that specific toilet. The repair necessary to remedy this leak was the responsibility of the building owner, not Pritchard.

Discussion

It is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the "cause of action . . . has no merit" (CPLR §3212[b]) sufficient to warrant the court as a matter of law to direct judgment in his or her favor (Bush v St. Claire's Hosp., 82 NY2d 738, 739 [1993]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Wright v National Amusements, Inc., 2003 NY Slip Op. 51390 [U] [Sup Ct New York County, 2003]). Thus, the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Ctr.; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Silverman v Perlbinder, 307 AD2d 230 [1st Dept 2003]; Thomas v Holzberg, 300 AD2d 10, 11 [1st Dept 2002]).

Alternatively, to defeat a motion for summary judgment, the opposing party must show [*6]facts sufficient to require a trial of any material issue of fact (CPLR §3212[b]). Thus, where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for his or her failure to do so (Vermette v Kenworth Truck Co., 68 NY2d 714, 717 [1986]; Zuckerman at 560, 562; Forrest v Jewish Guild for the Blind, 309 AD2d 546 [1st Dept 2003]). Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or her claim that material triable issues of fact exist (Zuckerman at 562).

"A party is entitled to full contractual indemnification [for damages incurred in a personal injury suit] provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances'" (Masciotta v Morse Diesel International, Inc., 303 AD2d 309, 758 NYS2d 286 [1st Dept 2003] citing Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, 777, 521 NYS2d 216). However, a party seeking contractual indemnification must establish that it is free from any negligence and that its liability is solely vicarious arising from the non-delegable duty imposed by the Labor Law (Quick v City of New York, 24 Misc 3d 1210, 890 NYS2d 370 [Sup Ct Kings County 2009] citing Rey v Ridamaset, LLC, 19 Misc 3d 1114, [Sup Ct Queens County 2008]; Correia v Professional Data Mgt., Inc., 259 AD2d 60, 693 NYS2d 596 [1st Dept 1999] ("In contractual indemnification, the one seeking indemnity need only establish that it was free from any negligence . . . ."); Francavilla v Nagar Const. Co., 151 AD2d 282, 542 NYS2d 557 [1st Dept 1989]).

The indemnification clause at issue provides in relevant part as follows:

1.1To the fullest extent permitted by law, the Vendor [Pritchard] will protect, defend, indemnify and hold free and harmless 100 Property LLC, Hiro Enterprise USA, Inc., Craven Management Corporation, . . . from and against any and all claims, damages, losses or expenses . . . arising out of or as a result of the performance of the Work, and/or any act or omission of the Vendor or any of its subcontractors, . . . employees . . . or anyone directly or indirectly employed by Vendor . . . ."

1.2Nothing herein contained shall require the Vendor to provide indemnification against that portion of any liability for claims which are proven to have arisen from the negligence of the party asked to be defended, indemnified or saved harmless.

The indemnification clause requires Pritchard to indemnify defendants/third-party plaintiffs where plaintiff's accident (1) arose out of the work of Pritchard, (2) resulted from performance of Pritchard's work or (3) resulted from any act or omission of Pritchard. The "Work" for which Pritchard agreed to indemnify defendants/third-party plaintiffs is described in the subject contract as "custodial and other specified services throughout the Building, including but not limited to all . . . lavatories." In regard to the "restrooms," Pritchard was responsible for sweeping and mopping floors, replenishing supplies, and cleaning various areas inside the restroom.

To the extent that plaintiff's accident was caused by a leaking water condition of the pipe in stall, the record establishes that Pritchard was not responsible for repairing or maintaining [*7]plumbing or the toilets. Pritchard's contract, and the testimony of defendants/third-party plaintiffs' witness Ferraro, establish that Pritchard was responsible for providing cleaning services only, and was not responsible for maintaining any plumbing equipment. Instead, Pritchard was obligated to "Report all damage breakage and/or apparent plumbing" problems to security and the Property Manager. The record indicates that plaintiff reported the plumbing problems she observed on prior occasions to the Saranda of Craven Management, as required.

As to the wet condition in the 19th floor ladies' room that allegedly caused plaintiff's accident, the record establishes that Pritchard had no prior notice of this a wet condition. Pritchard's witness, Sabala, testified that he did not receive any complaints of the wet condition prior to plaintiff's accident. Further, the testimony of plaintiff and defendants/third-party plaintiffs establishes that plaintiff reported the leaking water condition to Craven Management, and not to Pritchard. That plaintiff testified that she also told "Juan" is insufficient to raise an issue of fact as to whether Pritchard received notice of the water condition because plaintiff expressly stated that she did not report the condition to Pritchard, and did not know whether "Juan" was employed by Pritchard. Further, although Pritchard's employee Sabala admitted that if a tenant called the building's front desk about a problem in one of the bathrooms, it would be his or his co-worker's job to respond to the problem, there is no indication that any such problem, or any water condition for that matter, was ever reported to the front desk or to him on the day of plaintiff's accident, prior to her fall. Indeed, Sabala testified that no one made any complaints to him about the floor of the bathroom with regards to water leaks prior to plaintiff's accident, and he specifically denied that the plaintiff ever made any such complaints to him about water leaks on the bathroom floor. Therefore, there is no indication that Pritchard received any notice of the water condition at issue prior to the date of plaintiff's alleged accident.

However, that Pritchard did not have notice of the water condition prior to the plaintiff's accident is not dispositive as to whether plaintiff's accident arose out of the work of Pritchard, resulted from performance of Pritchard's work or resulted from any act or omission of Pritchard. The record indicates, as defendants/third-party plaintiffs point out, that Pritchard was responsible for mopping the bathroom floors. In this regard, the contract required Pritchard to mop the floors, and Sabala testified that the night shift was responsible for mopping the bathroom floors. According to Sabala, Pritchard's night shift consisted of "eight to nine employees" who mopped the bathroom floors on "nightly basis" and their supervisor was "Sulj Kosj" who inspected the work performed by the night shift. Ferraro testified that in the event a night porter observed a leaking condition, he or she would report it to their supervisor, Sulj Kosj, and the night supervisor "would leave a list for the engineering staff for the following day." There is no affidavit, deposition testimony, or documentary evidence as to whether the night shift mopped the bathroom floor as required, or reported the alleged leaking condition, if any. Pritchard failed to establish whether its porters during the night shift in fact mopped the subject floor on the night before plaintiff's accident, or that the leaking and/or wet condition was either not present, or was observed and reported to the proper person. Therefore, it cannot be said that plaintiff's accident did not arise or result from the performance of Pritchard's scope of work under the contract, or act or omission of Pritchard.

As such, it cannot be said, as a matter of law, that Pritchard is not obligated to indemnify defendants/third-party plaintiffs under the subject contract, and dismissal of the third-party [*8]contractual indemnification claim against Pritchard is unwarranted at this juncture.

However, as plaintiffs only opposed the part of Pritchard's motion seeking dismissal of the third-party contractual indemnification claim (third cause of action), the first and second causes of action sounding in negligence, the fourth cause of action for common law indemnification and fifth cause of action for failure to procure insurance, are dismissed.

Conclusion

Based on the foregoing, it is hereby

ORDERED that the branch of the motion by Pritchard Industries, Inc. for summary judgment dismissing the first, second, fourth and fifth causes of action of the third-party complaint of 100 Property LLC, Hiro Real Estate Co. and Craven Management, Corp. is granted, and such claims are hereby severed and dismissed; and it is further

ORDERED that the branch of the motion by Pritchard Industries, Inc. for summary judgment dismissing the third-party cause of action for contractual indemnification is denied; and it is further

ORDERED that Pritchard Industries, Inc. shall serve a copy of this order with notice of entry upon all parties within 20 days of entry; and it is further

ORDERED that the Clerk may enter judgment accordingly.

This constitutes the decision and order of the Court.

Dated: February 11, 2010__________________________________

Hon. Carol Robinson Edmead, J.S.C.

Based on the accompanying Memorandum Decision, it is hereby

ORDERED that the branch of the motion by Pritchard Industries, Inc. for summary judgment dismissing the first, second, fourth and fifth causes of action of the third-party complaint of 100 Property LLC, Hiro Real Estate Co. and Craven Management, Corp. is granted, and such claims are hereby severed and dismissed; and it is further [*9]

ORDERED that the branch of the motion by Pritchard Industries, Inc. for summary judgment dismissing the third-party cause of action for contractual indemnification is denied; and it is further

ORDERED that Pritchard Industries, Inc. shall serve a copy of this order with notice of entry upon all parties within 20 days of entry; and it is further

ORDERED that the Clerk may enter judgment accordingly.

This constitutes the decision and order of the Court.