Plaintiff, Robert Caridi, sues Defendants for injuries sustained in a slip and fall at the Jacob K. Javits Center [*2](Javits Center). Defendant George Little Management, Inc. (GLM) filed a third party complaint against Freeman Decorating Services, Inc. (Freeman) for indemnification and contribution. GLM moves for summary judgment on Caridi's negligence claim and conditional summary judgment against Freeman in the third party complaint on the grounds of contractual indemnity and breach of contract. Defendants Javits Center and New York Convention Center Operating Corporation (hereinafter jointly referred to as NYCCOC) cross-move for summary judgment against Caridi's negligence claim and against GLM for contractual indemnification. Freeman independently moves for summary judgment on the third party complaint on the ground that it supplied additional insured coverage to GLM, but properly denied coverage. The motions and the cross-motion are decided as follows.

The Javits Center is a convention hall that regularly holds large events. NYCCOC is the corporation that operates the Javits Center and employs its workers. GLM is the producer of an event called the "International Gift Show" or the "International Gift/Kids Stuff/Museum" (Gift Show). Freeman is the Gift Show's service contractor, responsible for providing equipment to the vendors and installing the booths, carpeting and banners in the venue.

NYCCOC entered into a license agreement with GLM, permitting GLM to use Room 3C of the Javits Center to conduct the Gift Show from January 29, 2006 through February 4, 2006. The event portion of the Gift Show ended on February 2, 2006, and the cleanup, informally broken down into two phases known as the "move-out" and the "trash-out," started immediately thereafter and ended on February 4, 2006 at 11:59 P.M. In the move-out, the vendors and the exhibitors remove their goods, while Freeman breaks down the venue and removes the heavy items. In the trash-out, NYCCOC's housekeeping staff sweeps and clears any debris left over that can be removed with broom and shovel (GLM's Motion, Ex. I, p.5).

Caridi was employed as a New York State Trooper and had been stationed at the Javits Center for over three years as a patrol officer. In performing his job, Caridi witnessed many shows and trash-outs. At 10:20 A.M. on February 4, 2006, Caridi was patrolling the Gift Show area. The move-out was substantially complete and NYCCOC had started the trash-out. Prior to the completion of the trash-out, Caridi slipped on some debris and was injured. The debris were in plain sight and consisted primarily of vendors' brochures, booklets and pamphlets.

The contract between NYCCOC and GLM sets forth the cleaning responsibilities of the parties. Paragraph 10 states:

"The following cleaning services are included in the License Fee: During the move-in and move-out periods, Licensor [NYCCOC] will [*3]sweep the Space and remove debris that can be readily removed with a broom and shovel . . . . Licensee and its contractors and exhibitors may order additional cleaning services at Licensor's established rates" (GLM's Motion, Ex. I, p.5).Caridi brought this action on February 5, 2007. GLM and NYCCOC both independently answered and cross claimed against each other for contribution and indemnification. At issue here is whether summary judgment on Caridi's claim is warranted, whether GLM must indemnify NYCCOC and whether Freeman must indemnify GLM.

Caridi argues that NYCCOC and GLM were negligent in their cleaning and maintenance of the event site; that they had notice of the debris, which constitutes a hazardous condition; and that they failed to maintain the premises in a reasonably safe manner.

In its motion for summary judgment, GLM makes three arguments. It first argues that it owed no duty of care to Caridi because GLM did not own the premises. Second, GLM contends that it did not maintain any control over the area during trash-out because NYCCOC retained the exclusive rights and duties to remove debris. Finally, GLM argues that it cannot be liable for Caridi's injuries because Caridi failed to comprehend and avoid an open and obvious condition. In its cross-motion for summary judgment, NYCCOC also argues that the condition was open and obvious, and further contends that it cannot be liable for Caridi's walking into an area that was known to be in the process of being cleaned at the time.

Caridi counters that an open and obvious danger does not negate the duty of an owner of property to maintain the premises in a reasonably safe condition. He also argues that GLM is liable because it ordered additional cleaning services from NYCCOC and supervised Freeman in the move-out. Finally, Caridi argues that no evidence has been provided supporting that NYCCOC's agents were actively cleaning when Caridi fell, because debris still littered the floor nearly four hours after trash-out began.

A condition is open and obvious when it could not reasonably be overlooked by an observer using his ordinary senses (Tagle v. Jacob, 97 NY2d 165 [2001]). If a hazard or dangerous condition is open and obvious, the owner of the property has no duty to warn of the danger (Westbrook v. WR Activities-Cabrera Markets, 5 AD3d 69, 71 [1st Dept, 2004]). It is uncontested that Caridi had actual knowledge that the convention room was strewn with debris, and that he slipped on a clearly visible piece of paper (see Plaintiff's Affirmation in Opposition, Ex. A). Therefore, to the extent that Caridi claim is premised on a failure to warn of a hazard, NYCCOC and GLM's motion for summary judgment on the complaint is granted. [*4]

Caridi, however, also claims negligence for a violation of the broader duty to maintain the premises in a reasonably safe condition. "[T]he duty to maintain premises in a reasonably safe condition is analytically distinct from the duty to warn, and that liability may be premised on a breach of the duty to maintain reasonably safe conditions even where the obviousness of the risk negates any duty to warn" (Cohen v. Shopwell, 309 AD2d 560, 562 [1st Dept, 2003]).

NYCCOC's subsequent argument addresses this aspect of Caridi's claim persuasively. Representatives of NYCCOC and GLM testified that the type and amount of debris present in the area was typical of the last day of a show's move-out and trash-out (see, Saunders EBT, attached to Cross-Motion, Ex. D, p.88-90, and Rubbery EBT, attached to GLM's Motion, Ex. G, p.44-46). Caridi agreed that it was typical to see such debris on the floor during trash-out, and he further testified that workers were in the process of cleaning the debris up at the time that he fell (Caridi EBT, attached to Cross-Motion, Ex. C, p.24 and 113).

A defendant that is aware of a dangerous hazard needs reasonable time to remedy the hazard (Brice v. New York City Transit Authority, 13 AD3d 206 [1st Dept., 2004]). Once remedial work has begun, the defendant must have a reasonable time to complete its remedy (see, Randall v. Montefiore Medical Center, 7 AD3d 464 [1st Dept., 2004] [holding that a slip and fall in hospital on a hazard that was actively being cleaned up was, as a matter of law, an insufficient time to remedy]).

NYCCOC expected that its cleanup would take nearly a full day; it specifically contracted for such an amount of time to effectuate the remedy (see generally, GLM's Motion, Ex I); and it was actively in the process of cleaning up the debris when Caridi fell. Caridi has not supplied any evidence that the Gift Show's trash-out could have been finished in four hours, or that trash-outs of the scale of the Gift Show are regularly completed in such time. Rather, given the size of the event area, the scope of the debris (see Plaintiff's Affirmation in Opposition, Ex. A), and the contractually mandated time-frame for cleanup, four hours is not a sufficiently reasonable time to complete the trash-out and remedy the hazard.

No material issues of fact remain regarding the open and obvious nature of the hazard and the ongoing nature of the remedy. Accordingly, summary judgment is granted to GLM, NYCCOC and Javits Center against Caridi on his claim of negligence.

B. Common Law Contribution, Indemnification and Apportionment

NYCCOC and GLM's cross-claims against each other for common law contribution, indemnification and apportionment are dismissed, as summary judgment has been granted dismissing Caridi's claim against them (see, Stone v. Williams, 64 NY2d 639 [1984]). However, the cross-claims for contractual [*5]indemnification must be discussed further.

C. Contractual Indemnification

A party is not entitled to contractual indemnification unless the claim which is asserted falls within the scope of the indemnity provision (see, Martinez v. Tishman Const. Corp. 227 AD2d 298 [1st Dept, 1996]).

1: NYCCOC's motion against GLM

NYCCOC argues that GLM has breached its contract by failing to honor its obligation to defend and indemnify NYCCOC. Specifically, NYCCOC contends that GLM must indemnify it because the injuries Caridi suffered arose in connection with GLM's use of the Javits Center for the Gift Show.

GLM counters that it properly named NYCCOC as an additional insured on its policy, but it is not required to indemnify NYCCOC for Caridi's injury because NYCCOC had the sole contractual obligation to clean the Gift Show area of debris. Therefore, GLM argues that Caridi's injuries are outside the scope of the indemnification clause. GLM also argues that Caridi's injuries were solely due to NYCCOC's negligence in cleaning the area, and not due to GLM's supervisory actions with the Gift Show.

NYCCOC's contract with GLM contained the following indemnification clause:

"[GLM] shall indemnify, hold harmless, and defend [NYCCOC] . . . from all losses . . . for any injury . . . arising in any way in connection with the use and enjoyment by the Licensee . . . . Such indemnification shall not be effective to the extent that damage or injury results from the sole negligence, gross negligence or willful misconduct of [NYCCOC]" (GLM's Motion, Ex. I, p.9 [emphasis added]).It is undisputed that GLM leased the property in the Javits Center until Midnight on February 4, 2006 for the purpose of hosting the Gift Show. It is further undisputed that the debris on which Caridi fell were the remnants of the Gift Show, specifically, the refuse of the Gift Show's vendors marketing material. Regardless of NYCCOC's clear delegation of debris removal duties, the creation of this debris arose directly from GLM's contractual use and enjoyment of the property under the license agreement.

It has been determined that NYCCOC was not negligent in its cleaning obligations and was actively remedying the known hazardous condition. Caridi's injuries did not result from NYCCOC's negligence but did arise from GLM's use and enjoyment of the licensed exhibition space. Accordingly, NYCCOC is entitled to summary judgment on its claim for contractual indemnification from GLM.

2: GLM's motion against Freeman

In its third party complaint, GLM argues that Freeman is contractually required to indemnify GLM because Freeman maintained some responsibility for removing debris from the floor [*6]of the convention center, and that it has breached its contract with GLM by not providing such indemnification, and by not procuring proper insurance.

Freeman moves for summary judgment against GLM's contractual claims for breach of insurance procurement and contractual indemnification provisions on the ground that insurance was properly procured, and that Caridi's injuries arose from events outside the scope of the indemnification agreement, and, therefore, no indemnification is warranted.

GLM's contract with Freeman contained the following indemnification clause:

"Freeman will indemnify, defend, and hold harmless George Little Management, LLC . . . from and against any bodily injury or property liability claims, judgments, damages, costs or expense, including reasonable attorneys' fees, arising out of or occasioned by the operations performed by Freeman,its employees, agents, servants or subcontractors, for George Little Management, LLC, except for occurrences of accidents caused by the sole negligence of [GLM] . . . or for that portion of any occurrence or accident caused by any other party" (GLM's motion, Ex. H, p.4 [emphasis added]).

Freeman submits sufficient evidence showing that it properly obtained the required additional insurance coverage for GLM as required by the Freeman-GLM contract. Therefore, the branch of Freeman's motion pertaining to procurement of insurance is granted.

In support of its argument that Freeman was obligated to remove debris from the event site, GLM only states that Freeman "maintained some responsibility for removing debris." In his deposition, William Kuehnle, Freeman's New York general manager, testified that part of Freeman's duties did include packing and dismantling "the actual booth property, the display itself" however, "[t]hings like product and promotional literature, the exhibitor normally packs themselves" (GLM's Motion, Ex. F, p.20). Kuehnle further testified that "we have no responsibility when it comes to the removal of litter or debris" (Id., at p.14). Similarly, Frank Sanders, NYCCOC's Manager of Environmental Services, testified that Freeman had no responsibility to remove paper debris from the floor of the convention center (GLM's Motion, Ex. E, p.82-83). It was such paper debris that Caridi slipped on.

Freeman's obligations to GLM did not extend to cleaning up debris created by exhibitors, and, therefore, Caridi's injury did not "arise from" and was not "occasioned by" any operation performed by Freeman.^[FN1] [*7]

Accordingly, it hereby is

ORDERED that Freeman's motion for summary judgment is granted and GLM's third party complaint against it is dismissed with costs and disbursements to Freeman as taxed upon the submission of an appropriate bill of costs, and the Clerk of the Court is directed to enter judgment accordingly

ORDERED that GLM's motion and NYCCOC's cross-motion are granted as to the complaint, and the complaint is dismissed, and the Clerk of the Court is directed to enter judgment accordingly with costs and disbursements to defendants as taxed; and it further is

ORDERED that GLM's motion is otherwise denied; and it further is

ORDERED that NYCCOC's cross-motion is further granted to the extent that (i) all cross-claims are dismissed against it and (ii) it is granted summary judgment as to liability on its cross-claim for contractual indemnification from GLM, and the issue of the amount owed to NYCCOC for expenses and reasonable attorney's fees is referred to a Special Referee to hear and report with recommendations, except that, in the event of and upon the filing of a stipulation of the parties, as permitted by CPLR 4317, the Special referee, or another person designated by the parties to serve as referee, shall determine the aforesaid issue; and it further is

ORDERED that entry of judgment in favor of NYCCOC on its cross-claim against GLM is held in abeyance pending receipt of the report and recommendations of the Special Referee and a motion pursuant to CPLR 4403 or receipt of the determination of the Special Referee or the designated referee; and it further is

ORDERED that a copy of this order with notice of entry shall be served on the Clerk of the Special Referee (Room 119) to arrange a date for the reference to a Special Referee.

Dated: February, 2010

Enter:

__________________________

J.S.C.