| Jackson v Manhattan Mall Eat LLC |
| 2013 NY Slip Op 07672 [111 AD3d 519] |
| November 19, 2013 |
| Appellate Division, First Department |
| Troy Jackson, Respondent, v Manhattan Mall EatLLC et al., Appellants. Manhattan Mall Eat LLC et al., Third-Party Plaintiffs-Appellants,v One Source Facility Services, Inc., et al., Third-PartyDefendants. |
—[*1] Mitchell Dranow, Sea Cliff, for respondent.
Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered on or aboutAugust 20, 2012, which, to the extent appealed from, denied Manhattan Mall Eat LLC,Vornado 100 West 33rd Street, LLC and One Source Facility Services, Inc.'s motion forsummary judgment dismissing the complaint, and denied Manhattan Mall Eat LLC andVornado 100 West 33rd Street, LLC's motion for summary judgment on the contractualindemnification and breach of contract claims asserted against KCL Protective Services,Inc., doing business as Advantage Security, unanimously modified, on the law, to grantso much of Manhattan Mall Eat LLC and Vornado 100 West 33rd Street, LLC's motionwhich sought summary judgment on their breach of contract claim, and otherwiseaffirmed, without costs.
Plaintiff alleges that he sustained personal injuries when, in the course of hisemployment as a security officer for third-party defendant KCL Protective Services, Inc.,doing business as Advantage Security, he tripped and fell on a gap created by amisaligned grate at a loading dock located on Vornado 100 West 33rd Street, LLC'spremises.
Defendants failed to make a prima facie showing of entitlement to summaryjudgment on the issue of liability. In support of the motion, defendants submitted onlytestimony concerning customary inspection and cleaning procedures. In the absence of"specific evidence as to their activities on the day of the accident, including evidenceindicating the last time the [grates were] inspected, cleaned, or maintained beforeplaintiff's fall," defendants failed to establish a lack of prior constructive notice (Cater v Double Down RealtyCorp., 101 AD3d 506, 506 [1st Dept 2012], citing Moser v BP/CG Ctr. I, LLC,56 AD3d 323 [1st Dept 2008]).
Defendant One Source Facility Services, Inc., the cleaning contractor retained toprovide [*2]services at the premises, failed to establishthat it did not launch a force or instrument of harm in negligently cleaning the grates onthe day before the accident (see Espinal v Melville Snow Contrs., 98 NY2d 136,139 [2002]). One Source did not submit any evidence that either it properly returned thegrates after cleaning them the day before the accident or that it had not cleaned the gratesat that time. The defense witnesses lacked personal knowledge of the grate cleaningallegedly performed on the day before the accident or the condition of the gratesthereafter and One Source did not supplement the deposition testimony withdocumentary evidence or an affidavit from one with personal knowledge.
As the Vornado defendants failed to establish that they were free from negligence,their motion for contractual indemnification was properly denied (see All Am. Moving & Stor., Inc. vAndrews, 96 AD3d 674, 676 [1st Dept 2012]; Pardo v Bialystoker Ctr. & BikurCholim, Inc., 10 AD3d 298, 301 [1st Dept 2004]). However, in the absence ofevidence that third-party defendant procured the required insurance, summary judgmentshould have been granted on the breach of contract claim. Concur—Mazzarelli,J.P., Saxe, Moskowitz, DeGrasse and Gische, JJ.