| Podlaski v Long Is. Paneling Ctr. of Centereach, Inc. |
| 2009 NY Slip Op 00522 [58 AD3d 825] |
| January 27, 2009 |
| Appellate Division, Second Department |
| Leonard Podlaski et al., Respondents, v Long IslandPaneling Center of Centereach, Inc., Respondent-Appellant, and ARG Concrete Corp.,Appellant-Respondent, et al., Defendants. |
—[*1] Morenus, Conway, Goren & Brandman, Melville, N.Y. (Frank R. Matozzo of counsel), forrespondent-appellant. Andrew L. Weitz (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac andJillian Rosen], of counsel), for plaintiffs-respondents.
In an action, inter alia, to recover damages for personal injuries, etc., the defendant ARGConcrete Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court,Suffolk County (R. Doyle, J.), dated December 26, 2007, as denied its cross motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against it, and thedefendant Long Island Paneling Center of Centereach, Inc., cross-appeals, as limited by its brief,from so much of the same order as denied its motion for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, with one billof costs payable to the plaintiffs by the defendants Long Island Paneling Center of Centereach,Inc., and ARG Concrete Corp.
The injured plaintiff, Jacqueline Podlaski, allegedly fell into a sinkhole located near the frontwalkway of commercial property owned by the defendant Long Island Paneling Center ofCentereach, Inc. (hereinafter Long Island Paneling). Prior to this incident, Long Island Panelinghad completed a construction project encompassing the area of the walkway and had employedthe defendant ARG Concrete Corp. (hereinafter ARG) to, inter alia, excavate the area. Theplaintiffs commenced the instant action against Long Island Paneling and ARG, among others, torecover damages for, inter alia, personal injuries sustained by the injured plaintiff as a result ofthe fall. Long Island Paneling moved, and ARG cross-moved, for summary judgment dismissingthe complaint and all cross claims insofar as asserted against each of them. The Supreme Courtdenied the motion and the cross motion. We affirm.
Long Island Paneling failed to satisfy its prima facie burden on its motion for summaryjudgment (see generally GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967[1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; CPLR 3212 [b]). Asthe owner of property onto which the public was invited, Long Island Paneling had "anondelegable duty to provide the public with a reasonably safe premises" (Backiel vCitibank, 299 AD2d 504, 505 [2002]). Thus, even if ARG created the hazardous conditionthat resulted in injury to the plaintiff Jacqueline Podlaski, Long Island Paneling may not,contrary to its contentions, avoid liability to the plaintiffs for its alleged failure to maintain thewalkway area in a safe condition (seeLoGiudice v Silverstein Props., Inc., 48 AD3d 286, 287 [2008]; Backiel v Citibank,N.A., 299 AD2d at 508; Thomassen v J & K Diner, 152 AD2d 421, 423-424[1989]). We note that the plaintiffs need not establish that Long Island Paneling had notice of thesinkhole, since this dangerous condition allegedly was created by its agent, the independentcontractor ARG (see Richardson v Schwager Assoc., 249 AD2d 531, 532 [1998];June v Zikakis Chevrolet, 199 AD2d 907, 909 [1993]).
Inasmuch as ARG's cross motion for summary judgment was made more than 120 days afterthe note of issue was filed, it was untimely (see CPLR 3212 [a]; Miceli v State Farm Mut. Auto. Ins.Co., 3 NY3d 725, 726-727 [2004]; Brill v City of New York, 2 NY3d 648, 652 [2004]). Since nogood cause was articulated by ARG for its late filing, its cross motion for summary judgmentwas properly denied as untimely (id.; see Lofstad v S & R Fisheries, Inc., 45 AD3d 739, 743 [2007]; Jones v Ricciardelli, 40 AD3d 936[2007]). Moreover, since the grounds upon which ARG premised its cross motion were notnearly identical to those upon which Long Island Paneling relied in connection with its motion(see Bickelman v Herrill BowlingCorp., 49 AD3d 578, 580 [2008]; cf. Grande v Peteroy, 39 AD3d 590, 591-592 [2007]), there is nobasis upon which we may impute good cause for ARG's delay in submitting its cross motion.Mastro, J.P., Florio, Balkin and Eng, JJ., concur. [See 2007 NY Slip Op 34251(U).]