| Laskowski v 525 Park Ave. Condominium |
| 2012 NY Slip Op 02285 [93 AD3d 822] |
| March 27, 2012 |
| Appellate Division, Second Department |
| Andrzej Laskowski et al., Respondents, v 525 Park AvenueCondominium, Appellant, and Preserv Building Restoration Management Incorporated et al.,Respondents. |
—[*1] Traub Lieberman Straus & Shrewsberry, LLP, Hawthorne, N.Y. (Chevon Andre Brooks ofcounsel), for defendants-respondents.
In an action to recover damages for personal injuries, etc., the defendant 525 Park AvenueCondominium appeals, as limited by its brief, from so much of an order of the Supreme Court,Kings County (Jacobson, J.), dated December 16, 2010, as denied those branches of its motionwhich were for summary judgment dismissing the common-law negligence cause of actioninsofar as asserted against it and for summary judgment on its cross claim against the defendantPreserv Building Restoration Management Incorporated for contractual indemnification, grantedthose branches of the separate motions of the defendant Preserv Building RestorationManagement Incorporated, and the defendants M.C. Construction Consulting Corp. and MarianCzajka, individually and doing business as M.C. Construction Consulting Corp., which were forsummary judgment dismissing the common-law negligence cause of action insofar as assertedagainst each of them, and granted that branch of the motion of the defendants M.C. ConstructionConsulting Corp. and Marian Czajka, individually and doing business as M.C. ConstructionConsulting Corp., which was for summary judgment dismissing its cross claims against them forcommon-law indemnification.
Ordered that the appeal from so much of the order as granted those branches of the separatemotions of the defendant Preserv Building Restoration Management Incorporated, and thedefendants M.C. Construction Consulting Corp. and Marian Czajka, individually and doingbusiness as M.C. Construction Consulting Corp., which were for summary judgment dismissingthe common-law negligence cause of action insofar as asserted against each of them is dismissed,as the defendant 525 Park Avenue Condominium is not aggrieved by that portion of the orderappealed from (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144, 152 [2010]); and it is further,
Ordered that the appeal from so much of the order as granted that branch of the motion of thedefendants M.C. Construction Consulting Corp. and Marian Czajka, individually and doingbusiness as M.C. Construction Consulting Corp., which was for summary judgment dismissing[*2]the cross claims of the defendant 525 Park AvenueCondominium against them for common-law indemnification is dismissed as academic, in lightof the determination of the appeal from so much of the order as denied that branch of the motionof the defendant 525 Park Avenue Condominium which was for summary judgment dismissingthe common-law negligence cause of action insofar as asserted against it; and it is further,
Ordered that the order is modified, on the law and the facts, (1) by deleting the provisionthereof denying that branch of the motion of the defendant 525 Park Avenue Condominiumwhich was for summary judgment dismissing the common-law negligence cause of action insofaras asserted against it, and substituting therefor a provision granting that branch of the motion, and(2) by adding thereto a provision searching the record, and awarding the defendant PreservBuilding Restoration Management Incorporated summary judgment dismissing the cross claim ofthe defendant 525 Park Avenue Condominium for contractual indemnification; as so modified,the order is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the defendant 525 Park Avenue Condominiumpayable by the plaintiffs, and one bill of costs is awarded to the defendants Preserv BuildingRestoration Management Incorporated, M.C. Construction Consulting Corp., and Marian Czajka,individually and doing business as M.C. Construction Consulting Corp., payable by thedefendant 525 Park Avenue Condominium.
On October 1, 2007, the plaintiff Andrzej Laskowski (hereinafter the plaintiff) allegedlysustained injuries after falling from a fire escape ladder on premises owned by the defendant 525Park Avenue Condominium (hereinafter 525 Park). 525 Park had hired the defendant PreservBuilding Restoration Management Incorporated (hereinafter Preserv) to perform certain work onbalconies located on the premises, and Preserv had in turn hired the defendant M.C. ConstructionConsulting Corp. (hereinafter MCC) as a subcontractor. MCC was owned by the defendantMarian Czajka. The plaintiff, who was a friend of Czajka, was not employed by any of thedefendants at the time of the accident. Rather, the plaintiff was on the premises solely to drop offvarious documents for Czajka pertaining to a project completely unrelated to the work beingperformed on the premises. He decided to climb the fire escape ladder because he was interestedin observing the work MCC was performing on the balconies.
The plaintiff commenced this action against the defendants, alleging common-law negligenceand violations of the Labor Law. His wife asserted a cause of action to recover damages for lossof consortium. The defendants asserted various cross claims against one another. 525 Parksought, inter alia, contractual indemnification from Preserv and common-law indemnificationfrom MCC and Czajka.
The defendants separately moved for summary judgment dismissing the complaint insofar asasserted against each of them. The Supreme Court determined that all of the defendants wereentitled to summary judgment dismissing the Labor Law causes of action, and that Preserv,MCC, and Czajka were entitled to summary judgment dismissing the common-law negligencecause of action insofar as asserted against them. The Supreme Court, however, denied thatbranch of 525 Park's motion which was for summary judgment dismissing the common-lawnegligence cause of action insofar as asserted against it. Additionally, the Supreme Court, interalia, denied that branch of 525 Park's motion which was for summary judgment on its cross claimagainst Preserv for contractual indemnification, and granted that branch of MCC and Czajka'smotion which was for summary judgment dismissing 525 Park's cross claims against them forcommon-law indemnification.
The Supreme Court erred in denying that branch of 525 Park's motion which was forsummary judgment dismissing the common-law negligence cause of action insofar as assertedagainst it. 525 Park established, prima facie, that the plaintiff did not know the cause of his fallfrom the fire escape ladder. The plaintiff merely speculated, but did not know, that the laddershook. "A plaintiff's speculation as to causation does not create the factual issue warranting trial"(Thomas v Our Lady of Mercy Med. Ctr., 289 AD2d 37, 38 [2001]; see Costantino v Webel, 57 AD3d472 [2008]; Moody v Woolworth Co., 288 AD2d 446, 446-447 [2001]). Moreover,even if the plaintiff fell because the fire [*3]escape ladder shook,525 Park established, prima facie, its entitlement to summary judgment by showing that theladder was not defective. The affidavit of the plaintiffs' expert, submitted in opposition to themotion, regarding ladder safety failed to raise a triable issue of fact, as that affidavit was entirelyconclusory and unsubstantiated (seeVerma v City of New York, 62 AD3d 863 [2009]; Crawford v Jefferson House Assoc., LLC, 57 AD3d 822, 823[2008]; Trummer v Niewisch, 17AD3d 349, 350 [2005]; Ambrosio v South Huntington Union Free School Dist., 249AD2d 346, 346-347 [1998]). In addition, contrary to the Supreme Court's determination, 525Park properly submitted its own expert's affidavit in reply to the plaintiffs' opposition papersunder the circumstances (see Trojahn vO'Neill, 5 AD3d 472, 473 [2004]).
The Supreme Court properly denied that branch of the motion of 525 Park which was forsummary judgment on its contractual indemnification claim against Preserv. Moreover, uponsearching the record, we find that Preserv is entitled to summary judgment dismissing 525 Park'scross claim against it for contractual indemnification (see Masi v Kir Munsey Park 020 LLC, 76 AD3d 514 [2010]). It isapparent from the record that 525 Park cannot satisfy several prerequisites necessary to triggerthe indemnification provision, including the requirement that any claim must "arise out of, orresult from, the performance of [the] work" (Loiek v 1133 Fifth Ave. Corp., 46 AD3d 766, 767 [2007]).
In light of our determination, the parties' remaining contentions have been rendered academic(see Stagno v 143-50 Hoover OwnersCorp., 48 AD3d 548, 549-550 [2008]; Abbattista v King's Grant Master Assn., Inc., 39 AD3d 439, 442[2007]). Rivera, J.P., Eng, Hall and Sgroi, JJ., concur.