| Jones v Rochdale Vil., Inc. |
| 2012 NY Slip Op 05146 [96 AD3d 1014] |
| June 27, 2012 |
| Appellate Division, Second Department |
| Cheryl Jones, Appellant, v Rochdale Village, Inc.,Appellant-Respondent, Howard L. Zimmerman Architect, P.C., Respondent-Appellant, andArcadia Architectural Products, Inc., et al., Appellants, et al., Defendants. |
—[*1] O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Eileen M. Baumgartner ofcounsel), for appellant-respondent. Donovan Hatem, LLP, New York, N.Y. (Scott K. Winikow of counsel), forrespondent-appellant. Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (James P. Tyrie ofcounsel), for defendant-appellant Arcadia Architectural Products, Inc. Milber Makris Plousadis & Seiden, White Plains, N.Y. (David C. Zegarelli of counsel), fordefendants-appellants Werfel & Assoc. Architects, P.C., Lawrence Werfel & Assoc., andLawrence Werfel.
In an action to recover damages for personal injuries, (1) the plaintiff appeals, as limited byher brief, from so much of an order of the Supreme Court, Queens County (Rosengarten, J.),dated August 30, 2010, as granted that branch of the motion of the defendant Howard L.Zimmerman Architect, P.C., which was for summary judgment dismissing the complaint insofaras asserted against it, (2) the defendant Rochdale Village, Inc., the defendant ArcadiaArchitectural Products, Inc., and the defendants Werfel & Associates Architects, P.C., LawrenceWerfel & Associates, and Lawrence Werfel separately appeal, as limited by their respectivebriefs, from so much of the same order as granted those branches of the motion of the defendantHoward L. Zimmerman Architect, P.C., which were for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it, and (3) the defendant Howard L.Zimmerman Architect, P.C., cross-appeals from so much of the same order as denied that branchof its motion which was for summary judgment on its cross claim for contractual indemnificationagainst the defendant Rochdale Village, Inc.
Ordered that the appeal by the defendant Rochdale Village, Inc., the defendant [*2]Arcadia Architectural Products, Inc., and the defendants Werfel &Associates Architects, P.C., Lawrence Werfel & Associates, and Lawrence Werfel from so muchof the order as granted that branch of the motion of the defendant Howard L. ZimmermanArchitect, P.C., which was for summary judgment dismissing the complaint insofar as assertedagainst it is dismissed, as those defendants are not aggrieved by that portion of the order (seeCPLR 5511; Mixon v TBV,Inc., 76 AD3d 144 [2010]); and it is further,
Ordered that the order is modified, on the law, (1) by deleting the provision thereof grantingthat branch of the motion of the defendant Howard L. Zimmerman Architect, P.C., which was forsummary judgment dismissing the complaint insofar as asserted against it, and substitutingtherefor a provision denying that branch of the motion as premature, (2) by deleting the provisionthereof granting that branch of the motion of the defendant Howard L. Zimmerman Architect,P.C., which was for summary judgment dismissing the cross claims for contribution insofar asasserted against it, and substituting therefor a provision denying that branch of the motion, and(3) by adding a provision thereto denying that branch of the motion of the defendant Howard L.Zimmerman Architect, P.C., which was pursuant to CPLR 3211 (a) (1) and (7) to dismiss thecomplaint insofar as asserted against it; as so modified, the order is affirmed insofar as reviewedon the appeals and insofar as cross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendant Rochdale Village, Inc., thedefendant Arcadia Architectural Products, Inc., and the defendants Werfel & AssociatesArchitects, P.C., Lawrence Werfel & Associates, and Lawrence Werfel, appearing separately andfiling separate briefs, payable by the defendant Howard L. Zimmerman Architect, P.C., and onebill of costs is awarded to the plaintiff, payable by the defendant Rochdale Village, Inc., thedefendant Arcadia Architectural Products, Inc., and the defendants Werfel & AssociatesArchitects, P.C., Lawrence Werfel & Associates, and Lawrence Werfel, appearing separately andfiling separate briefs.
The plaintiff allegedly sustained injuries when she tripped and fell on a metal bar at thethreshold of a sliding glass door leading to the terrace of her apartment. The owner of thebuilding, the defendant Rochdale Village, Inc. (hereinafter Rochdale), had hired the defendantHoward L. Zimmerman Architect, P.C. (hereinafter Zimmerman), an architectural firm, toprepare construction documents for the project during which the subject door was installed. Theplaintiff commenced this action against, among others, Rochdale and Zimmerman, as well as thedefendant Arcadia Architectural Products, Inc. (hereinafter Arcadia), the manufacturer of thesubject door, and the defendants Werfel & Associates Architects, P.C., Lawrence Werfel &Associates, and Lawrence Werfel (hereinafter collectively Werfel), which provided architecturalservices during the project.
Prior to answering the complaint, Zimmerman moved, inter alia, pursuant to CPLR 3211 (a)(1) and (7), or in the alternative, pursuant to CPLR 3212, to dismiss the complaint and all crossclaims insofar as asserted against it. The Supreme Court granted that branch of the motion whichwas for summary judgment dismissing the complaint and all cross claims. In addition, it deniedthat branch of Zimmerman's motion which was for summary judgment on its cross claim forcontractual indemnification against Rochdale. We modify.
Although the Supreme Court was authorized to treat that branch of Zimmerman's pre-answermotion which was pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint insofar asasserted against it as one for summary judgment upon "adequate notice to the parties" (CPLR3211 [c]), no such notice was given, and none of the exceptions to the notice requirement isapplicable (see Mihlovan v Grozavu, 72 NY2d 506 [1988]; Bowes v Healy, 40 AD3d 566,566-567 [2007]). Contrary to Zimmerman's contention, "the unilateral actions of a party inseeking summary judgment on a CPLR 3211 (a) (7) motion cannot constitute 'adequate notice' tothe other party in compliance with the requirement of CPLR 3211 (c)" (Mihlovan vGrozavu, 72 NY2d at 508 n; see Wiesen v New York Univ., 304 AD2d 459, 460[2003]). Moreover, the motion did not exclusively involve "a purely legal question rather thanany issues of fact" (Mihlovan v Grozavu, 72 NY2d at 508; see Bowes v Healy, 40AD3d at 567), and the record does not establish that the plaintiff was "laying bare [her] proof anddeliberately charting a summary judgment course" (Four Seasons Hotels v Vinnik, 127AD2d 310, 320 [1987]; cf. McNameeConstr. Corp. v City of New Rochelle, 29 AD3d 544, 545 [2006]). Thus, that branch of[*3]Zimmerman's motion which was for summary judgmentdismissing the complaint insofar as asserted against it must be denied as premature (see Cityof Rochester v Chiarella, 65 NY2d 92, 101-102 [1985]), and this Court will apply thestandards applicable to a motion to dismiss pursuant to CPLR 3211 (a) in determining whetherZimmerman was entitled to dismissal of the complaint insofar as asserted against it (see Bokara Rug Co., Inc. v Kapoor, 93AD3d 583 [2012]; Velez v CaptainLuna's Mar., 74 AD3d 1191, 1191-1192 [2010]).
"A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be granted only if thedocumentary evidence submitted utterly refutes the factual allegations of the complaint andconclusively establishes a defense to the claims as a matter of law" (Integrated Constr. Servs., Inc. v ScottsdaleIns. Co., 82 AD3d 1160, 1162-1163 [2011]; see Granada Condominium III Assn. v Palomino, 78 AD3d 996,996 [2010]). Although the parties' contracts qualify as "documentary evidence" within theintendment of CPLR 3211 (a) (1), Zimmerman's remaining submissions, which includedaffidavits, letters, and deposition testimony, do not (see Granada Condominium III Assn. vPalomino, 78 AD3d at 996; Fontanetta v John Doe 1, 73 AD3d 78, 84-86 [2010]; Suchmacher v Manana Grocery, 73AD3d 1017, 1017 [2010]). In any event, to the extent that the evidence constituted"documentary evidence," such evidence failed to utterly refute the plaintiff's allegation thatZimmerman negligently designed the subject doorway threshold and did not conclusivelyestablish a defense as a matter of law (see Granada Condominium III Assn. v Palomino,78 AD3d at 997).
When a party moves to dismiss a complaint pursuant to CPLR 3211 (a) (7), "the standard iswhether the pleading states a cause of action," and, in considering such a motion, "the court mustaccept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possiblefavorable inference, and determine only whether the facts as alleged fit within any cognizablelegal theory" (Sokol v Leader, 74AD3d 1180, 1180-1181 [2010] [internal quotation marks omitted]; see Leon vMartinez, 84 NY2d 83, 87-88 [1994]). When the moving party submits evidentiary materialin support of his or her motion, "the criterion then becomes 'whether the proponent of thepleading has a cause of action, not whether he [or she] has stated one' " (Sokol v Leader,74 AD3d at 1181-1182, quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).However, "a motion to dismiss pursuant to CPLR 3211 (a) (7) must be denied 'unless it has beenshown that a material fact as claimed by the pleader to be one is not a fact at all and unless it canbe said that no significant dispute exists regarding it' " (Sokol v Leader, 74 AD3d at1182, quoting Guggenheimer v Ginzburg, 43 NY2d at 275). Here, dismissal pursuant toCPLR 3211 (a) (7) was not warranted, since Zimmerman's evidentiary materials did not establishthat a material fact alleged in the complaint "was, undisputedly, 'not a fact at all' " (Sokol vLeader, 74 AD3d at 1182, quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275[1977]; see Ascani v EI Du Pont DeNemours & Co., 85 AD3d 830, 830 [2011]). Accordingly, those branches ofZimmerman's motion which were pursuant to CPLR 3211 (a) (1) and (7) to dismiss thecomplaint insofar as asserted against it must be denied.
Contrary to Rochdale's contention, those branches of Zimmerman's motion which were forsummary judgment dismissing the cross claims insofar as asserted against it, and for summaryjudgment on its cross claim for contractual indemnification against Rochdale, were "notpremature simply because a formal answer thereto was never interposed," as the cross claims didnot demand an answer (Aetna Cas. & Sur. Co. v McCarthy, 246 AD2d 406, 406-407[1998]; see CPLR 3011).
The Supreme Court improperly granted that branch of Zimmerman's motion which was forsummary judgment dismissing the cross claims of Rochdale, Arcadia, and Werfel seekingcontribution from Zimmerman. Contrary to Zimmerman's contention, it failed to eliminate alltriable issues of fact as to whether it negligently designed the doorway threshold upon which theplaintiff tripped (see Torres v W.J.Woodward Constr., Inc., 32 AD3d 847, 848 [2006]; see generally Cubito vKreisberg, 69 AD2d 738, 744-745 [1979], affd 51 NY2d 900 [1980]; cf. Gonzalez v Clay, 83 AD3d999, 999 [2011]). Since Zimmerman failed to meet its prima facie burden, it is unnecessaryto consider whether the opposition papers were sufficient to raise a triable issue of fact (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
However, the Supreme Court properly granted those branches of Zimmerman's motion whichwere for summary judgment dismissing the cross claims asserted against it seeking common-lawand contractual indemnification and sounding in breach of contract for failure to [*4]procure insurance, breach of warranty, and strict products liability.Zimmerman established its prima facie entitlement to judgment as a matter of law dismissing thecross claims asserted against it seeking contractual indemnification and sounding in breach ofcontract for failure to procure insurance by demonstrating that it did not have a contractualrelationship with Arcadia, and that its contract with Rochdale did not require it to indemnifyRochdale or to procure insurance naming Rochdale as an additional insured (see Galvin Bros., Inc. v Town of Babylon,N.Y., 91 AD3d 715, 716 [2012]; Richards v Passarelli, 77 AD3d 905, 908-910 [2010]). Zimmermanalso established its prima facie entitlement to judgment as a matter of law dismissing the crossclaims asserted against it sounding in breach of warranty and strict products liability bydemonstrating that the contract between Rochdale and Zimmerman was for the performance ofservices (see Mallards Dairy, LLC vE&M Engrs. & Surveyors, P.C., 71 AD3d 1415, 1417 [2010]; Trustees of ColumbiaUniv. in City of N.Y. v Gwathmey Siegel & Assoc. Architects, 192 AD2d 151, 155 [1993]).Furthermore, the liability of Zimmerman's codefendants, "if any, would be based on their actualwrongdoing, not their vicarious liability for [Zimmerman]'s allegedly negligent conduct, thusdefeating all claims for common-law indemnification" (Richards v Passarelli, 77 AD3d at908 [citations omitted]; see Corley vCountry Squire Apts., Inc., 32 AD3d 978, 979 [2006]). In opposition to Zimmerman'sprima facie showing, Rochdale, Arcadia, and Werfel failed to raise a triable issue of fact.
Contrary to Zimmerman's contention, it was not entitled to summary judgment on its crossclaim for contractual indemnification against Rochdale. Zimmerman improperly asserted thecross claim in a separate pleading prior to answering the complaint (see CPLR 3011). Inany event, summary judgment on the cross claim would have been premature, since Zimmermanfailed to establish, as a matter of law, that the plaintiff's claim did not result from Zimmerman'snegligence in the performance of its services, as required by the "third-party claim"indemnification clause of its contract with Rochdale (see Bryde v CVS Pharmacy, 61 AD3d 907, 908 [2009]; cf. Pritchard v Suburban Carting Corp.,90 AD3d 729, 731 [2011]). Accordingly, that branch of Zimmerman's motion which was forsummary judgment on its contractual indemnification cross claim against Rochdale was properlydenied.
The parties' remaining contentions either need not be reached in light of our determination,are not properly before this Court, or are without merit. Florio, J.P., Balkin, Chambers andCohen, JJ., concur.