Fourth Department — Slip and Fall: Payton v. 5391 Transit Road LLC

Appellate Division, Fourth Department

Slip and Fall

Indemnification — Dangerous Condition

Payton v. 5391 Transit Road LLC
CA 13-00013
Appealed from Supreme Court, Erie County

Background: After a slip and fall in the defendant’s parking lot, the plaintiff commenced an action against the owner of the property. A third-party defendant, who was hired to perform snowplowing services for the parking lot, moved for summary judgment dismissing the third-party complaint seeking contractual indemnification. In response, the third-party plaintiff cross-moved for a conditional order of indemnification. Both motions were denied.

Ruling: The Appellate Division affirmed. Both parties failed to establish whether the defendants created the dangerous condition or did not have actual or constructive notice of it. The alleged dangerous condition consisted of a mound of snow in the first parking space next to the front entrance, which the plaintiff climbed over to reach his vehicle. There was a triable issue of fact as to whether the snow mound was created by the plowing company or the property owners.

Karen Krogman of Smith, Sovik, Kendrick & Sugnet for the defendants-appellants and third-party plaintiff-respondent-appellant; Laurence D. Behr of Barth Sullivan Behr for the third-party defendant-appellant-respondent; Justin S. White for the plaintiff-respondent