| Kubicsko v Westchester County Elec., Inc. |
| 2014 NY Slip Op 02411 [116 AD3d 737] |
| April 9, 2014 |
| Appellate Division, Second Department |
| John M. Kubicsko, Respondent, v WestchesterCounty Electric, Inc., Respondent, and Mack-Cali Realty Corporation et al., Appellants.(Appeal No. 1.) John M. Kubicsko, Respondent, v Westchester County Electric, Inc.,Appellant, et al., Defendants. (Appeal No. 2.) |
—[*1] Craig P. Curcio, Middletown, N.Y. (Kevin P. Ahrenholz of counsel), fordefendant-respondent in appeal No. 1 and appellant in appeal No. 2. Morici & Morici, LLP, Garden City, N.Y. (Mia-Laine Martinez of counsel), forplaintiff-respondent in appeal No. 1 and respondent in appeal No. 2.
In an action to recover damages for personal injuries, the defendants Mack-CaliRealty Corporation and Cali CW Realty Associates, L.P., appeal, as limited by their brief,from so much of an order of the Supreme Court, Westchester County (Smith, J.), enteredJuly 19, 2012, as denied those branches of their cross motion which were for summaryjudgment dismissing the complaint insofar as asserted against them and on so much oftheir first cross claim as sought contractual indemnification from the defendantWestchester County Electric, Inc., for any liability that they may incur in this action, andthe defendant Westchester County Electric, Inc., separately appeals, as limited by itsbrief, from so much of the same order as denied its motion for summary judgmentdismissing the complaint insofar as asserted against it.
Ordered that the order is modified, on the law, (1) by deleting the provision thereofdenying that branch of the cross motion of the defendants Mack-Cali Realty Corporationand Cali CW Realty Associates, L.P., which was for summary judgment dismissing thecomplaint insofar as asserted against them and substituting therefor a provision grantingthat branch of the cross motion, (2) by deleting the provision thereof denying that branchof the cross motion of those defendants which was for summary judgment on so much oftheir first cross claim as sought contractual indemnification from the defendantWestchester County Electric, Inc., for any liability that they may incur in this action, andsubstituting therefor a provision denying that branch of the [*2]cross motion as academic, and (3) by deleting the provisionthereof denying the motion of the defendant Westchester County Electric, Inc., forsummary judgment dismissing the complaint insofar as asserted against it andsubstituting therefor a provision granting that motion; as so modified, the order isaffirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendant Westchester CountyElectric, Inc., payable by the plaintiff, and one bill of costs is awarded to the defendantsMack-Cali Realty Corporation and Cali CW Realty Associates, L.P., payable by theplaintiff and the defendant Westchester County Electric, Inc.
The plaintiff, an employee of United Parcel Service, allegedly was injured when hestepped onto a rubber bumper that was attached to a loading dock on certain premises,and the bumper detached from the wall. The premises were owned by the defendantsMack-Cali Realty Corporation and Cali CW Realty Associates, L.P. (hereinafter togetherthe Mack-Cali defendants), and portions of the premises were leased by the defendantWestchester County Electric, Inc. (hereinafter Westchester). At the time of the accident,the plaintiff was making a delivery to Westchester.
Westchester moved for summary judgment dismissing the complaint insofar asasserted against it, and the Mack-Cali defendants cross-moved, inter alia, for summaryjudgment dismissing the complaint insofar as asserted against them and on so much oftheir first cross claim as sought contractual indemnification from Westchester for anyliability that they may incur in this action. The Supreme Court denied the motion andthose branches of the cross motion.
Westchester demonstrated its prima facie entitlement to judgment as a matter of lawdismissing the complaint insofar as asserted against it. "Generally, liability for adangerous condition on real property must be predicated upon ownership, occupancy,control, or special use of the property" (DeCourcey v Briarcliff Cong. Church, 104 AD3d 799, 801[2013], quoting Russo vFrankels Garden City Realty Co., 93 AD3d 708, 710 [2012]; see Bennett v Weber Job LotCorp., 93 AD3d 684 [2012]; Quarless v Dengler, 48 AD3d 438 [2008]; Morrison vGerlitzky, 282 AD2d 725 [2001]; Millman v Citibank, 216 AD2d 278[1995]). Westchester established, prima facie, that it had no exclusive right to use theloading dock, but was merely permitted to use that area in common with other tenants,and that it had no contractual obligation to repair or maintain the loading dock (seeDeCourcey v Briarcliff Cong. Church, 104 AD3d at 800; Russo v FrankelsGarden City Realty Co., 93 AD3d at 710; Bennett v Weber Job Lot Corp., 93 AD3d 684 [2012];Morrison v Gerlitzky, 282 AD2d 725 [2001]; Millman v Citibank, 216AD2d 278 [1995]). Further, Westchester established, prima facie, that it did not makespecial use of the loading dock, or create the alleged defect (see DeCourcey vBriarcliff Cong. Church, 104 AD3d at 800; Morrison v Gerlitzky, 282 AD2d725 [2001]; Millman v Citibank, 216 AD2d 278 [1995]). The plaintiff's untimelyopposition to Westchester's motion should not have been considered, since the plaintifffailed to offer a valid excuse for his late submission, and Westchester was prejudiced bythe court's denial of its motion for an adjournment to file reply papers (seeMosheyeva v Distefano, 288 AD2d 448 [2001]; Risucci v Zeal Mgt. Corp.,258 AD2d 512 [1999]).
The Mack-Cali defendants demonstrated their prima facie entitlement to judgment asa matter of law dismissing the complaint insofar as asserted against them bydemonstrating that they did not create the alleged hazardous condition or have actual orconstructive notice of it (seeRivera v 2160 Realty Co., L.L.C., 4 NY3d 837, 838-839 [2005]; Gordon vAmerican Museum of Natural History, 67 NY2d 836, 837-838 [1986]; Nesterenko v Starrett City Assoc.,L.P., 111 AD3d 806 [2013]; Muniz v New York City Hous. Auth., 38 AD3d 628[2007]). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]).
In light of our determination of that branch of the Mack-Cali defendants' crossmotion which was for summary judgment dismissing the complaint insofar as assertedagainst them, that branch of their cross motion which was for summary judgment on somuch of their first cross claim as sought contractual indemnification from Westchesterfor any liability they may incur in this action has been rendered academic.[*3]
Accordingly, the Supreme Court should havegranted Westchester's motion for summary judgment dismissing the complaint insofar asasserted against it, should have granted that branch of the Mack-Cali defendants' crossmotion which was for summary judgment dismissing the complaint insofar as assertedagainst them, and should have denied, as academic, that branch of their cross motionwhich was for summary judgment on so much of their first cross claim as soughtcontractual indemnification from Westchester for any liability that they may incur in thisaction. Skelos, J.P., Leventhal, Lott and Cohen, JJ., concur.