| Tingling v C.I.N.H.R., Inc. |
| 2010 NY Slip Op 04988 [74 AD3d 954] |
| June 8, 2010 |
| Appellate Division, Second Department |
| Yakima Tingling, Plaintiff, v C.I.N.H.R., Inc., Defendant,and Thyssenkrupp Elevator Corporation, Defendant/Third-Party Plaintiff-Appellant. CentralIsland Nursing Home, Inc., Third-Party Defendant-Respondent. |
—[*1] Melito & Adolfsen, P.C., New York, N.Y. (Louis G. Adolfsen and Michael H. Bazzi ofcounsel), for third-party defendant-respondent.
In an action to recover damages for personal injuries and a third-party action to recoverdamages, inter alia, for breach of a contract to procure insurance, the defendant/third-partyplaintiff appeals from an order of the Supreme Court, Queens County (Hart, J.), dated February19, 2008, which denied its motion for summary judgment on the third-party complaint. Theappeal brings up for review an order of the same court dated December 3, 2008, which deniedthe motion of the defendant/third-party plaintiff, in effect, for leave to renew its prior motion forsummary judgment on the third-party complaint (see CPLR 5517 [b]).
Ordered that the orders are affirmed, with one bill of costs.
On November 11, 1996, the third-party defendant, Central Island Nursing Home (hereinafterthe nursing home), hired the predecessor of the defendant/third-party plaintiff, ThyssenkruppElevator Corporation (hereinafter the elevator company), to service and maintain the elevators inone of its buildings. The contract required that the nursing home obtain liability insurancenaming the elevator company's predecessor as an additional insured. In 2000 a second contractwas signed which contained a virtually identical insurance procurement clause.
On March 16, 2003, the plaintiff allegedly was injured while using one of the elevators at thenursing home. She commenced the instant personal injury action against, among others, theelevator company. In 2007 the elevator company commenced a third-party action against thenursing home to [*2]recover damages, inter alia, for breach of itscontract to procure insurance naming it as an additional insured. Thereafter, the elevatorcompany moved for summary judgment on the third-party complaint. The Supreme Court deniedits motion. The elevator company then moved, in effect, for leave to renew its prior motion forsummary judgment on the third-party complaint. The Supreme Court also denied that motion.We affirm.
In support of its initial motion for summary judgment, the elevator company failed to make aprima facie showing of entitlement to judgment as a matter of law (see generally Winegrad vNew York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). "A party seeking summary judgmentbased on an alleged failure to procure insurance naming that party as an additional insured mustdemonstrate that a contract provision required that such insurance be procured and that theprovision was not complied with" (Rodriguez v Savoy Boro Park Assoc. Ltd.Partnership, 304 AD2d 738, 739 [2003]; see Aragundi v Tishman Realty & Constr. Co., Inc., 68 AD3d1027, 1029 [2009]). Here, the elevator company failed to demonstrate that the nursing homebreached an insurance procurement clause (see Bryde v CVS Pharmacy, 61 AD3d 907, 909 [2009]). In fact,the elevator company did not proffer a copy of the subject insurance policy with its initialmoving papers. Instead, it submitted the insurance policy for the first time in the reply papers.The elevator company's "prima facie burden cannot be met by evidence submitted for the firsttime in its reply papers" (Yeum v CloveLakes Health Care & Rehabilitation Ctr., Inc., 71 AD3d 739 [2010]). Since the elevatorcompany failed to meet its initial burden as movant, this Court need not review the sufficiency ofthe nursing home's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64NY2d at 853).
We note that, in the order dated February 19, 2008, the Supreme Court found that theaffirmation of the elevator company's attorney was insufficient to establish which elevatormaintenance and service contract was in effect at the time of the accident, or that the elevatorcompany was the corporate successor to the signatory on the subject contracts. "The affidavit oraffirmation of an attorney, even if he [or she] has no personal knowledge of the facts, may, ofcourse, serve as the vehicle for the submission of acceptable attachments which do provideevidentiary proof in admissible form, e.g., documents, transcripts" (Zuckerman v City ofNew York, 49 NY2d 557, 563 [1980]). Here, the two elevator maintenance and servicecontracts, which were properly submitted as attachments to the elevator company's attorney'saffirmation, are clear as to the relevant terms contained therein.
The elevator company's motion, in effect, for leave to renew its prior motion for summaryjudgment on the third-party complaint was properly denied, as the "new facts" offered would not"change the prior determination" (CPLR 2221 [e] [2]). Rivera, J.P., Santucci, Eng and Chambers,JJ., concur.