| Sand v City of New York |
| 2011 NY Slip Op 03226 [83 AD3d 923] |
| April 19, 2011 |
| Appellate Division, Second Department |
| Adam Sand, Respondent, v City of New York,Defendant/Third-Party Plaintiff, and Verizon New York, Inc., Defendant/Third-PartyDefendant/Fourth-Party Plaintiff-Respondent. S. DiFazio and Sons Construction, Inc.,Fourth-Party Defendant-Appellant. |
—[*1] Ronemus & Vilensky, Garden City, N.Y. (Lisa Comeau of counsel), for plaintiff-respondent. Cullen and Dykman LLP, Brooklyn, N.Y. (Kevin M. Walsh and Tom Abernethy of counsel),for defendant/third-party defendant/fourth-party plaintiff-respondent.
In an action to recover damages for personal injuries, the fourth-party defendant, S. DiFazioand Sons Construction, Inc., appeals, as limited by its brief, from so much of an order of theSupreme Court, Kings County (Velasquez, J.), dated September 28, 2009, as denied its crossmotion for summary judgment dismissing the complaint insofar as asserted against thedefendant/third-party defendant/fourth-party plaintiff, Verizon New York, Inc., and thefourth-party complaint of Verizon New York, Inc., and granted that branch of the motion ofVerizon New York, Inc., which was for summary judgment on its fourth-party cause of action forcontractual indemnification.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denyingthat branch of the cross motion of S. DiFazio and Sons Construction, Inc., which was forsummary judgment dismissing the complaint insofar as asserted against Verizon New York, Inc.,and substituting therefor a provision granting that branch of the cross motion, (2) by deleting theprovision thereof granting that branch of the motion of Verizon New York, Inc., which was forsummary judgment on its cause of action in the fourth-party complaint for contractualindemnification with respect to any damages for which it may have been liable to the plaintiff orthe defendant/third-party plaintiff, City of New York, and substituting therefor a provisiondenying that branch of the motion, (3) by deleting the provision thereof denying those branchesof the cross motion of S. DiFazio and Sons Construction, Inc., which were for summaryjudgment dismissing the second and third causes of action in the fourth-party complaint, andsubstituting therefor a provision granting those branches of the motion, and (4) by deleting theprovision thereof denying that branch of the cross motion of S. DiFazio and Sons Construction,Inc., which was for summary judgment dismissing the cause of action in the fourth-partycomplaint for contractual indemnification with respect to any damages for which [*2]it may have been liable to the plaintiff or the City of New York, andsubstituting therefor a provision granting that branch of the cross motion; as so modified, theorder is affirmed insofar as appealed from, with one bill of costs payable by the plaintiff to S.DiFazio and Sons Construction, Inc., and one bill of costs payable by S. DiFazio and SonsConstruction, Inc., to Verizon New York, Inc., and, upon searching the record, summaryjudgment is awarded to Verizon New York, Inc., dismissing the third-party complaint and allcross claims asserted against it.
The plaintiff allegedly was injured when his motorcycle struck a pothole on Grand Street inBrooklyn, approximately 50 to 100 feet east of Bushwick Avenue. The plaintiff commenced thisaction against the City of New York, which commenced a third-party action for indemnificationagainst Verizon New York, Inc. (hereinafter Verizon), to which the City had issued a permit toopen the roadway at Grand Street between Bushwick Avenue and Olive Street. Verizoncommenced a fourth-party action for, among other things, contractual indemnification against thefourth-party defendant, S. DiFazio and Sons Construction, Inc. (hereinafter DiFazio), which hadperformed the work for Verizon under the subject permit. After the plaintiff amended thecomplaint to name Verizon directly as a defendant, the City, among other things, asserted a crossclaim against Verizon for indemnification.
Verizon moved for summary judgment dismissing the complaint, the third-party complaint,and the cross claim insofar as asserted against it, and for summary judgment on its fourth-partycause of action for contractual indemnification against DiFazio. DiFazio cross-moved, inter alia,for summary judgment dismissing the complaint insofar as asserted against Verizon, and forsummary judgment dismissing the fourth-party complaint. The Supreme Court denied the motionand the cross motion, except that it granted that branch of Verizon's motion which was forsummary judgment on its fourth-party cause of action for contractual indemnification againstDiFazio.
The Supreme Court erred in denying that branch of DiFazio's cross motion which was forsummary judgment dismissing the complaint insofar as asserted against Verizon. Although acontractor may be liable for an affirmative act of negligence which results in the creation of adangerous condition upon a public street or sidewalk (see Brown v Welsbach Corp., 301NY 202, 205 [1950]; Cohen vSchachter, 51 AD3d 847, 848 [2008]; Cino v City of New York, 49 AD3d 796, 797 [2008]; Gurriell vTown of Huntington, 129 AD2d 768, 770 [1987]), DiFazio met its prima facie burden ofestablishing Verizon's entitlement to judgment as a matter of law by submitting evidencedemonstrating that DiFazio did not perform any work on the portion of the roadway where theaccident occurred, and did not create the allegedly defective condition which caused theplaintiff's injuries. Since DiFazio was the only subcontractor performing work for Verizon underthe subject permit, DiFazio thus established, prima facie, that Verizon could not be held liable.The plaintiff failed to raise a triable issue of fact in opposition to DiFazio's showing (seegenerally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, the SupremeCourt should have awarded summary judgment to DiFazio dismissing the complaint insofar asasserted against Verizon.
Since summary judgment should have been awarded to Verizon dismissing the complaintinsofar as asserted against it, DiFazio should have been awarded summary judgment dismissingthe second and third causes of action in the fourth-party complaint, in their entirety, and the firstcause of action for contractual indemnification, insofar as Verizon sought indemnification withrespect to any damages for which it may have been liable to the plaintiff or the City of NewYork. In light of our determination, Verizon will not be subject to liability for any of thosedamages, and there is thus no need for Verizon to recoup them from DiFazio. Accordingly, theSupreme Court incorrectly awarded summary judgment to Verizon as to those damages.However, contrary to DiFazio's contention, Verizon is entitled to be indemnified for attorney'sfees and costs incurred in the defense of this action. Pursuant to the contract between DiFazioand Verizon, DiFazio agreed to defend and indemnify Verizon for all claims arising out ofDiFazio's "actual or alleged acts or omissions." The plain and unambiguous terms of the contractdo not condition DiFazio's obligation for attorneys' fee and costs on a finding of fault (see Barnes v New York City Hous.Auth., 43 AD3d 842, 845 [2007]; McCleary v City of Glens Falls, 32 AD3d 605, 609 [2006];Pope v Supreme-K.R.W. Constr. Corp., 261 AD2d 523, 524-525 [1999]; DiPerna vAmerican Broadcasting Cos., 200 AD2d 267, 269-270 [1994]). Accordingly, the SupremeCourt correctly awarded summary judgment to Verizon as to those damages.[*3]
This Court has the authority to search the record andaward summary judgment to a nonmoving party with respect to an issue that was the subject ofthe motion before the Supreme Court (see Grabowski v Consolidated Edison Co. of N.Y., Inc., 72 AD3d888, 889 [2010]; Rivera v PortAuth. of N.Y. & N.J., 69 AD3d 917, 918 [2010]; Surace v Commonwealth Land Tit. Ins. Co., 62 AD3d 861, 862[2009]). Accordingly, under the circumstances of this case, summary judgment is awarded toVerizon dismissing the third-party complaint and the City's cross claims against it. Prudenti, P.J.,Dillon, Chambers and Sgroi, JJ., concur.