| Aragundi v Tishman Realty & Constr. Co., Inc. |
| 2009 NY Slip Op 09597 [68 AD3d 1027] |
| December 22, 2009 |
| Appellate Division, Second Department |
| Diana Aragundi, Respondent, v Tishman Realty &Construction Co., Inc., et al., Defendants and Third-Party Plaintiffs-Appellants. GrahamRestoration Co., Inc., Third-Party Defendant; ABM Maintenance, Third-PartyDefendant-Respondent. |
—[*1] Michael A. Cervini, Jackson Heights, N.Y. (Robin Mary Heaney of counsel), forplaintiff-respondent. Gallo Vitucci & Klar, New York, N.Y. (Kimberly A. Ricciardi of counsel), for third-partydefendant/second third-party defendant-respondent ABM Maintenance.
In a consolidated action to recover damages for personal injuries, the defendant third-partyplaintiff and the defendant second third-party plaintiff appeal, as limited by their brief, from somuch of an order of the Supreme Court, Queens County (Agate, J.), entered February 10, 2009,as denied that branch of their motion which was for summary judgment dismissing the complaintand granted those branches of the cross motion of the third-party defendant/second third-partydefendant ABM Maintenance which were for summary judgment dismissing the third-party andsecond third-party causes of action for contractual indemnification, common-lawindemnification, contribution, and, in effect, to recover damages for breach of contract insofar asasserted against it.
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the cross motion of the third-party defendant/second third-party defendantABM Maintenance which were for summary judgment dismissing the third-party and secondthird-party causes of action for contractual indemnification, common-law indemnification andcontribution insofar as asserted against it, and substituting therefor a provision denying thosebranches of the cross motion; as so modified, the order is affirmed insofar as appealed from, withone bill of costs payable to the plaintiff by the defendant third-party plaintiff and the defendantsecond third-party plaintiff.[*2]
The plaintiff allegedly was injured when she fell down aflight of steps while descending to a subway station. She alleges that her injuries were caused bya loose handrail. The plaintiff commenced the instant action against the building lessee DreamTeam Associates, LLC, and the property manager Tishman Realty & Construction Co., Inc.(hereinafter together the defendants). The defendants commenced separate third-party actionsagainst, among others, ABM Maintenance (hereinafter ABM), which was responsible forcleaning services for the subway entrance, asserting causes of action for contractualindemnification, common-law indemnification, and contribution, and, in effect, to recoverdamages for breach of contract for failure to procure insurance.
The defendants moved, inter alia, for summary judgment dismissing the complaint on theground that they did not create or have notice of the allegedly dangerous condition. ABM thencross-moved for summary judgment dismissing the third-party and second-third party causes ofaction insofar as asserted against it. The Supreme Court denied the defendants' motion andgranted ABM's cross motion. We modify.
"A defendant who moves for summary judgment in a slip-and-fall case has the initial burdenof making a prima facie showing that it neither created the hazardous condition nor had actual orconstructive notice of its existence for a sufficient length of time to discover and remedy it"(Sloane v Costco Wholesale Corp., 49 AD3d 522, 523 [2008] [internal quotation marksomitted]). Here, the defendants failed to meet their initial burden. Although the defendantssubmitted the deposition testimony of their property manager and the plaintiff in support of theirmotion, they offered no evidence as to when the handrail was last inspected prior to theplaintiff's accident, when inspections were normally made, or when prior problems with thehandrail, if any, were reported (see Rodriguez v Hudson View Assoc., LLC, 63 AD3d1135 [2009]; Britto v Great Atl. & Pac. Tea Co., Inc., 21 AD3d 436 [2005]). Under thesecircumstances, it is not necessary to consider the sufficiency of the plaintiff's opposition papers(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Additionally, "[a] party seeking summary judgment based on an alleged failure to procureinsurance naming that party as an additional insured must demonstrate that a contract provisionrequired that such insurance be procured and that the provision was not complied with"(Rodriguez v Savoy Boro Park Assoc. Ltd. Partnership, 304 AD2d 738 [2003]; seeMcGill v Polytechnic Univ., 235 AD2d 400 [1997]). Since ABM demonstrated that itcomplied with the insurance procurement clause, the Supreme Court did not err in granting thatbranch of ABM's cross motion which was for summary judgment dismissing the causes ofaction, in effect, to recover damages for breach of contract insofar as asserted against it (seeKinney v Lisk Co., 76 NY2d 215 [1990]; Lima v NAB Constr. Corp., 59 AD3d 395[2009]).
However, the Supreme Court erred in granting that branch of ABM's cross motion whichwas for summary judgment dismissing the causes of action for contractual indemnificationinsofar as asserted against it. ABM failed to establish its entitlement to judgment as a matter oflaw dismissing these causes of action, since there were triable issues of fact as to the extent, ifany, of its liability for causing the plaintiff's injury (see Callan v Structure Tone, Inc., 52AD3d 334 [2008]).
Further, the Supreme Court improperly granted that branch of ABM's cross motion whichwas for summary judgment dismissing the causes of action for common-law indemnificationinsofar as asserted against it, since an award of summary judgment on a claim for common-lawindemnification is appropriate only where there are no triable issues of fact concerning thedegree of fault attributable to the parties (see Coque v Wildflower Estates Devs., Inc., 31AD3d 484, 489 [2006]; La Lima v Epstein, 143 AD2d 886, 888 [1988]). Here, issues offact remain with respect to the negligence, if any, of ABM and the defendants.
Moreover, the Supreme Court erred in granting that branch of ABM's cross motion whichwas for summary judgment dismissing the causes of action for contribution insofar as assertedagainst it. Pursuant to CPLR 1401, "two or more persons who are subject to liability for damagesfor the same personal injury . . . may claim contribution among them." The injuryallegedly caused by the defendants' negligence is the same injury as that allegedly caused by the[*3]negligence of ABM (see Nassau Roofing & Sheet MetalCo. v Facilities Dev. Corp., 71 NY2d 599 [1988]). As there are issues of facts as to who wasresponsible for the accident, an award of summary judgment dismissing the contribution causesof action was not appropriate. Mastro, J.P., Santucci, Belen and Chambers, JJ., concur.