| Manicone v City of New York |
| 2010 NY Slip Op 06078 [75 AD3d 535] |
| July 13, 2010 |
| Appellate Division, Second Department |
| Andrew Manicone, Respondent, v City of New York,Respondent, Roosevelt Savings Bank, Respondent-Appellant, and W.E. Bonnie Contracting,Inc., et al., Appellants-Respondents. |
—[*1] Havkins Rosenfeld Ritzert & Varriale, LLP, Mineola, N.Y. (Michelle L. Meiselman ofcounsel), for appellants-respondents National Rent-A-Fence Co., National Construction Rentals,Inc., and National Construction Rentals, doing business as National Rent-A-Fence. Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Richard E. Lerner andPatrick J. Lawless of counsel), for respondent-appellant. Robert G. Schacht, PLLC, Staten Island, N.Y. (Robert A. Mulhall of counsel), forplaintiff-respondent.
In an action to recover damages for personal injuries, the defendant W.E. BonnieContracting, Inc., appeals, as limited by its brief, from so much of an order of the SupremeCourt, Kings County (Velasquez, J.), dated February 18, 2009, as denied its motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against it, thedefendants National Rent-A-Fence Co., National Construction Rentals, Inc., and NationalConstruction Rentals, doing business as National Rent-A-Fence, separately appeal from so muchof the same order as denied their separate motion for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against them or, in the alternative, for summaryjudgment on their cross claim for contractual indemnification against the defendant RooseveltSavings Bank, and the defendant Roosevelt Savings Bank separately appeals, as limited by itsbrief, 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, with one bill of costs to the plaintiff payable by thedefendants appearing separately and filing separate briefs.
The plaintiff allegedly was injured when he tripped and fell over a bracket supporting [*2]a temporary fence in front of premises owned by the defendantRoosevelt Savings Bank (hereinafter the bank). The temporary fence had been erected on thepublic sidewalk in front of the bank because the exterior facade of the building was undergoingrenovation. Photographs of the accident site taken two days after the accident showed that thebrackets supporting the fence were rectangular in shape, and protruded a considerable distancebeyond the fence, thus narrowing the portion of the sidewalk available for unobstructed passage.
Following the accident, the plaintiff commenced this action against, among others, the bank,W.E. Bonnie Contracting, Inc. (hereinafter W.E. Bonnie), the general contractor of therenovation project, and National Rent-A-Fence Co. and National Construction Rentals, Inc.(hereinafter together the fence company defendants), who had supplied and installed the fence.After depositions had been conducted, W.E. Bonnie and the bank separately moved for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against them, and thefence company defendants moved for the same relief or, in the alternative, for summaryjudgment on their cross claim against the bank for contractual indemnification. In support of itsmotion for summary judgment, W.E. Bonnie argued that it could not be held liable because itwas not contractually responsible for the installation or maintenance of the temporary fence, andhad not created the allegedly dangerous condition which caused the plaintiff's fall. In support oftheir motions for summary judgment, both the bank and the fence company defendantscontended that they could not be held liable because the support bracket over which the plaintifftripped was open and obvious, and not inherently dangerous. The fence company defendants alsoasserted that they owed no duty of care to the plaintiff. The Supreme Court denied thedefendants' respective motions, and we affirm.
Contrary to W.E. Bonnie's contention, the Supreme Court properly denied its motion forsummary judgment dismissing the complaint and all cross claims insofar as asserted against it."[T]he proponent of a summary judgment motion must make a prima facie showing ofentitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate theabsence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]). The failure to make such a prima facie showing requires the denial of the motionregardless of the sufficiency of the plaintiff's opposing papers (see Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851, 853 [1985]). Here, the evidentiary proof submitted by W.E.Bonnie in support of its motion was insufficient to eliminate all issues of fact as to whether itcould be held liable in its role as general contractor because it exercised control over the worksite and had notice of the allegedly dangerous condition arising from the placement of the fence(see Tilford v Sweet Home Real Prop.Trust, 40 AD3d 966 [2007]; cf.Keating v Nanuet Bd. of Educ., 40 AD3d 706, 708 [2007]), or whether it created thesubject condition by moving the fence to a position on the sidewalk where its protruding supportbrackets could become a tripping hazard (see Losito v City of New York, 38 AD3d 854, 855 [2007]; Coulton v City of New York, 29 AD3d301, 302 [2006]).
The Supreme Court also properly denied the bank's motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it, and that branch of theseparate motion of the fence company defendants which was for the same relief. The bank andthe fence company defendants failed to make a prima facie showing of entitlement to judgmentas a matter of law upon the ground that the support bracket was an open and obvious conditionwhich was not, as a matter of law, inherently dangerous (see Shah v Mercy Med. Ctr., 71 AD3d 1120 [2010]; Cooper v American Carpet & RestorationServs., Inc., 69 AD3d 552, 553 [2010]; Crafa v Marshalls of MA, Inc., 57 AD3d 937 [2008]; Salomon v Prainito, 52 AD3d803, 805 [2008]; Boston v City ofNew York, 51 AD3d 615, 616 [2008]). In addition, the fence company defendantsfailed to make a prima facie showing of entitlement to judgment as a matter of law upon theground that they owed no duty of care to the plaintiff, since they failed to establish that they didnot create the allegedly dangerous condition (see Espinal v Melville Snow Contrs., 98NY2d 136, 141-142 [2002]; Cooper v American Carpet & Restoration Servs., Inc., 69AD3d at 554).
Finally, the Supreme Court properly denied that branch of the fence company defendants'motion which was for summary judgment on their cross claim for contractual indemnificationagainst the bank because they did not make a prima facie showing that they were [*3]free from negligence (see General Obligations Law §5-322.1; Tarpey v Kolanu Partners,LLC, 68 AD3d 1099 [2009]; Cava Constr. Co., Inc. v Gealtec Remodeling Corp., 58 AD3d 660,662 [2009]). Covello, J.P., Dickerson, Eng and Austin, JJ., concur.