| Proulx v Entergy Nuclear Indian Point 2, LLC |
| 2012 NY Slip Op 05811 [98 AD3d 492] |
| August 1, 2012 |
| Appellate Division, Second Department |
| Morgan Proulx et al., Respondents, v Entergy NuclearIndian Point 2, LLC, et al., Appellants, and Bartlett Nuclear, Inc., Respondent, et al.,Defendants. |
—[*1] Finkelstein & Partners LLP, Newburgh, N.Y. (George A. Kohl, 2nd, of counsel), forplaintiffs-respondents. Alan I. Lamer, Elmsford, N.Y. (McGaw, Alventosa & Zajac [Andrew Zajac], of counsel), fordefendant-respondent.
In an action to recover damages for personal injuries, etc., the defendants Entergy NuclearIndian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Services, Inc., appeal, aslimited by their brief, from so much of an order of the Supreme Court, Westchester County(Lefkowitz, J.), entered September 13, 2011, as granted those branches of the motion of thedefendant Bartlett Nuclear, Inc., which were for summary judgment dismissing the complaintinsofar as asserted against it and their cross claims insofar as asserted against it, and denied theirmotion for summary judgment dismissing the complaint and all cross claims insofar as assertedagainst them, or, in the alternative, for summary judgment dismissing the claim for future lostearnings insofar as asserted against them.
Ordered that the appeal from so much of the order as granted that branch of the motion of thedefendant Bartlett Nuclear, Inc., which was for summary judgment dismissing the complaintinsofar as asserted against it is dismissed, as the defendants Entergy Nuclear Indian Point 2, LLC,Entergy Nuclear Indian Point 3, LLC, and Entergy Services, Inc., are not aggrieved by thatportion of the order (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144, 156 [2010]); and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs and the defendant Bartlett Nuclear,Inc., appearing separately and filing separate briefs.
The injured plaintiff allegedly slipped and fell on ice in a parking lot owned by thedefendants Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, andEntergy Services, Inc. (hereinafter collectively the Entergy defendants), which was allegedly notproperly illuminated. The Supreme Court properly denied that branch of the Entergy defendants'motion which was for summary judgment dismissing the complaint and all cross claims insofaras asserted against them, since those defendants failed to establish, prima facie, that they did notcreate or have actual or constructive notice of the alleged icy condition (see Gordon vAmerican Museum of Natural [*2]History, 67 NY2d 836[1986]). Additionally, the Entergy defendants failed to demonstrate that the accident site wasadequately illuminated and that the alleged lighting condition did not proximately cause theaccident (see Healy v Bartolomei,87 AD3d 1112, 1113 [2011]; Warfield v Shan Assoc. of Syosset, LLC, 69 AD3d 708, 708[2010]; Gestetner v Teitelbaum, 52AD3d 778, 778 [2008]).
The Supreme Court properly denied the Entergy defendants' alternative request for summaryjudgment dismissing the claim for future lost earnings. The Entergy defendants failed toestablish, prima facie, that the injured plaintiff would be unable to establish his future lostearnings with reasonable certainty (cf.Deans v Jamaica Hosp. Med. Ctr., 64 AD3d 742, 744 [2009]). Since the Entergydefendants failed to meet their initial burden as the movants, we need not review the sufficiencyof the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851[1985]).
With respect to the defendant Bartlett Nuclear, Inc. (hereinafter Bartlett), which provided,inter alia, limited snow removal services at the Entergy defendants' premises, the Supreme Courtproperly granted that branch of its motion which was for summary judgment dismissing theEntergy defendants' cross claims for common-law indemnification and contribution. Bartlettestablished, prima facie, that it was entitled to judgment as a matter of law dismissing thecommon-law indemnification claim by demonstrating that the injured plaintiff's accident was notdue solely to its negligent performance or nonperformance of an act solely within its province (see Schultz v Bridgeport & Port JeffersonSteamboat Co., 68 AD3d 970, 972 [2009]; Roach v AVR Realty Co., LLC, 41 AD3d 821, 824 [2007]). Inopposition, the Entergy defendants failed to raise a triable issue of fact. Furthermore, inopposition to the prima facie showing by Bartlett that it was entitled to summary judgmentdismissing the contribution claim, the Entergy defendants failed to raise a triable issue of fact asto whether Bartlett owed the Entergy defendants a duty of care independent of its contractualobligations, or that Bartlett owed the injured plaintiff a duty of care (see Schultz v Bridgeport& Port Jefferson Steamboat Co., 68 AD3d at 972; Wheaton v East End Commons Assoc., LLC, 50 AD3d 675, 678[2008]; Roach v AVR Realty Co., LLC, 41 AD3d at 824). Rivera, J.P., Dickerson, Halland Cohen, JJ., concur.