| Guerra v St. Catherine of Sienna |
| 2010 NY Slip Op 09219 [79 AD3d 808] |
| December 14, 2010 |
| Appellate Division, Second Department |
| Felix Guerra et al., Plaintiffs, v St. Catherine of Sienna et al.,Defendants/Third-Party Plaintiffs-Respondents. Colin Cares, Inc., et al., Third-PartyDefendants-Appellants. |
—[*1] Mulholland, Minion & Roe, Williston Park, N.Y. (Christine M. Gibbons of counsel), fordefendants/third-party plaintiffs-respondents.
In an action, inter alia, to recover damages for personal injuries, etc., the third-party defendantsappeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County(Sgroi, J.), dated August 17, 2009, as denied their motion for summary judgment dismissing thethird-party causes of action for contribution and common-law and contractual indemnification.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thosebranches of the third-party defendants' motion which were for summary judgment dismissing thethird-party causes of action for contribution and common-law indemnification, and substituting therefora provision granting those branches of the motion; as so modified, the order is affirmed insofar asappealed from, without costs or disbursements.
The plaintiff Felix Guerra (hereinafter Guerra) allegedly was injured when he slipped and fell as heswept a stairwell on the premises of the defendants/third-party plaintiffs St. Catherine of Sienna andCatholic Health Services of Long Island (hereinafter together the hospital). Guerra and his wife, IsabelGuerra, suing derivatively, commenced this action against the hospital, alleging that he fell because ofinadequate or defective lighting in the stairwell. The hospital thereafter commenced a third-party actionagainst Guerra's employers, Colin Cares, Inc., and American Building Maintenance Co. of NewYork-Manhattan (hereinafter together ABM), for contribution and common-law and contractualindemnification. ABM moved for summary judgment dismissing the third-party complaint. The SupremeCourt denied the motion in its entirety, and we modify.
To sustain a third-party cause of action for contribution, a third-party plaintiff is required to showthat the third-party defendant owed it a duty of reasonable care independent of its contractualobligations, or that a duty was owed to the plaintiffs as injured parties and that a breach of that dutycontributed to the alleged injuries (see Baratta v Home Depot USA, 303 AD2d 434, 435[2003]; see also Roach v AVR Realty Co.,LLC, 41 AD3d 821, 824 [2007]; Torchio v New York City Hous. Auth., 40 AD3d 970, 971 [2007])."[A] defendant may seek contribution from a third party even if the injured plaintiff has no direct right ofrecovery against that party, either because of a procedural bar or because of a substantive legal rule"(Raquet v Braun, 90 NY2d 177, 182 [1997]).
Likewise, in situations where a third-party plaintiff is free from negligence, but may [*2]be held vicariously or statutorily liable for the third-party defendant'snegligence, the third-party defendant may be held liable for common-law indemnification in the absenceof a duty running to the plaintiff "if the plaintiff's injuries are attributable solely to the negligentperformance or nonperformance of an act that was solely within the province of [the third-partydefendant]" (Mitchell v Fiorini Landscape, 284 AD2d 313, 314 [2001]; see Baratta vHome Depot USA, 303 AD2d at 435; Raquet v Braun, 90 NY2d at 183).
Here, ABM made a prima facie showing of its entitlement to judgment as a matter of law dismissingthe third-party causes of action for common-law indemnification and contribution by establishing that itbreached no duty to Guerra, since the hospital was responsible for maintaining sufficient lighting, andthat inadequate or defective lighting caused his fall (see Roach v AVR Realty Co., LLC, 41AD3d at 824). In opposition to this showing, the hospital failed to raise a triable issue of fact by eitherdemonstrating that ABM did, in fact, have a duty to Guerra to maintain the lighting system, or bysubmitting evidence tending to show that ABM breached a duty of reasonable care owed to thehospital independent of ABM's contractual obligations (id.). Thus, those branches of ABM'smotion which were for summary judgment dismissing the third-party causes of action for common-lawindemnification and contribution should have been granted.
However, the Supreme Court properly denied that branch of ABM's motion which was forsummary judgment dismissing the third-party cause of action for contractual indemnification, sinceABM failed to tender proof in admissible form establishing the terms of the contract in effect at the timeof Guerra's accident (see generally Zuckerman v City of New York, 49 NY2d 557, 562[1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). In light ofABM's failure in this regard, we need not examine the sufficiency of the hospital's opposition paperswith respect to that cause of action (see Winegrad v New York Univ. Med. Ctr., 64 NY2d851, 853 [1985]).
The parties' remaining contentions have been rendered academic. Rivera, J.P., Dickerson, Lott andRoman, JJ., concur. [Prior Case History: 2009 NY Slip Op 31931(U).]