| Morales v County of Suffolk |
| 2011 NY Slip Op 02642 [82 AD3d 1184] |
| March 29, 2011 |
| Appellate Division, Second Department |
| Sienna Morales et al., Plaintiffs, v County of Suffolk,Defendant/Third-Party Plaintiff-Appellant, and Landtek Group, Inc., Defendant/Third-PartyDefendant-Respondent. |
—[*1] Tromello, McDonnell & Kehoe, Melville, N.Y. (Kevin P. Slattery of counsel), fordefendant/third-party defendant-respondent.
In an action to recover damages for personal injuries, etc., in which the defendant County ofSuffolk commenced a third-party action, inter alia, for contractual indemnification and to recoverdamages for breach of contract, the defendant/third-party plaintiff appeals, as limited by its brief,from so much of an order of the Supreme Court, Suffolk County (Jones, Jr., J.), dated April 16,2010, as denied its cross motion for summary judgment on the first cause of action in thethird-party complaint for contractual indemnification and the fourth cause of action in thethird-party complaint to recover damages for breach of contract.
Ordered that the order is affirmed insofar as appealed from, with costs.
The infant plaintiff allegedly was injured when a gate at a playground rebounded and struckher in the face after she pushed against it in order to gain access to the playground. The gate hadbeen constructed and erected by Landtek Group, Inc. (hereinafter Landtek), in conformance withspecifications approved by the County of Suffolk.
Following the accident, the infant plaintiff and her father commenced this action against theCounty. The County subsequently commenced a third-party action against Landtek; the plaintiffsthereafter also commenced an action against Landtek. The plaintiffs' actions were consolidatedupon the County's unopposed cross motion.
The Supreme Court properly denied that branch of the County's cross motion which was forsummary judgment on the first cause of action in the third-party complaint for contractualindemnification, because the County did not meet its burden of establishing prima facie that itwas free from negligence in the happening of the infant plaintiff's accident (see GeneralObligations Law § 5-322.1; Manicone v City of New York, 75 AD3d 535, 537-538[2010]; Tarpey v Kolanu Partners, LLC, 68 AD3d 1099, 1100-1101 [2009]; CavaConstr. Co., Inc. v Gealtec Remodeling Corp., 58 AD3d 660, 662 [2009]).[*2]
The Supreme Court also properly denied that branch ofthe County's cross motion which was for summary judgment on the fourth cause of action in thethird-party complaint which was to recover damages for breach of contract based upon Landtek'salleged failure to obtain commercial general liability insurance naming the County as anadditional insured. The County did not meet its burden of establishing prima facie that Landtekfailed to comply with its obligation to obtain such a policy naming the County as an additionalinsured (see Aragundi v Tishman Realty & Constr. Co., Inc., 68 AD3d 1027, 1029[2009]). Consequently, denial of those branches of the County's cross motion which were forsummary judgment on the first and fourth causes of action in its third-party complaint waswarranted without regard to the sufficiency of the papers submitted in opposition (cf.Padovano v Costco Wholesale Corp., 28 AD3d 729, 730-731 [2006]). Skelos, J.P., Balkin,Austin and Sgroi, JJ., concur.