Zuckerman v. State

—In a claim to recover damages for personal injuries, etc., the claimants appeal from a judgment of the Court of Claims (Silverman, J.), dated July 9, 1992, which, after a trial on the issue of liability only, was in favor of the defendant and against them, dismissing the claim.

Ordered that the judgment is reversed, on the law, with costs, the complaint is reinstated, and the matter is remitted to the Court of Claims for further proceedings consistent herewith.

The plaintiff slipped and fell on a patch of ice which had formed on the upper level of a parking garage located on the campus of the State University of New York at Stony Brook. This property was owned by a non-party, the Dormitory Authority of the State of New York, and occupied by the defendant State. As found by the Court of Claims, "the State, through its University, agreed to provide [certain] services to the Dormitory Authority”. The Court of Claims also found, based on the documentary evidence before it, that "one of [the] services [provided by defendant State] was snow and ice removal and sanding or salting”.

The "Parking Facilities Maintenance Agreement I”, entered into between the Dormitory Authority of the State of New York and the State University of New York, states in relevant part that "the University [was supposed] to provide the following services at Parking Garage A * * * snow and ice removal and sanding and salting as required”. A "Manual of Operating Procedures” states that "SUNY [was supposed to] patrol * * * the facilities to assure that * * * no unsafe conditions exist”. This document also identifies ice patches as an example of the type of unsafe condition for which agents of the State University were supposed to inspect the premises.

The Court of Claims held, after trial on the issue of liability, that the defendant State owed no common-law duty of reasonable care with respect to the maintenance of this property, and that the State did not owe any duty to the plaintiff on the theory that the plaintiff was a third-party beneficiary of the State’s contract with the Dormitory Authority. We disagree with this holding.

The evidence establishes that the control of the premises in question was a cooperative effort in which the State played an essential role by providing cleaning, security, and other services. An occupant of premises, like an owner, has a common law duty to keep the property in reasonably safe condition (see, Putnam v Stout, 38 NY2d 607; Zadarosni v F. & W. Restauranteurs, 192 AD2d 1051; Provenzano v Roslyn Gardens Tenants Corp., 190 AD2d 718; Farrar v Teicholz, 173 AD2d 674; Elston v FCO Auto Racing, 161 AD2d 561; Chadis v Grand Union Co., 158 AD2d 443; McGill v Caldors, Inc., 135 AD2d 1041). This duty coexists with the duty the defendant State undertook as a result of its contractual promise to keep the premises free of ice and snow (see, Palka v Servicemaster Mgt. Serv. Corp., 83 NY2d 579; cf., Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220; Ledda v Minkin, 149 AD2d 471). In light of the provisions noted above, the State’s contractual promises could only have enlarged, and could not have restricted, the scope of its duty of care.

In general, the duty which the common law imposes on the owner or possessor of property includes the duty to make reasonable efforts to inspect the property so as to determine the presence of dangerous conditions (Willis v Young Men’s Christian Assn., 28 NY2d 375; Ford v Grand Union Co., 268 NY 243). The owner or possessor of property does not absolve himself or herself of this duty merely by hiring a third party to make periodic inspections (see, Fish v Estate of McCarthy, 224 App Div 160). Thus, the holding of the Court of Claims that "the State was under no obligation to * * * [inspect the garage]” is incorrect. This duty existed both as a matter of contract and as a matter of tort law.

For the foregoing reasons, the Court of Claims erred in granting judgment to the defendant and dismissing the complaint either on the theory that the State’s negligence, if any, consisted of nonfeasance only (cf., Palka v Servicemaster Mgt. Serv. Corp., 83 NY2d 579, supra) or on the theory that the plaintiff was not an intended beneficiary of the State’s contract with the Dormitory Authority. The matter should therefore be remitted to the Court of Claims for a decision on those issues left undecided as a result of that court’s determination, and, if necessary, for an apportionment of liability and a trial of damages. Bracken, J. P., Miller and Copertino, JJ., concur.