| Arriola v City of New York |
| 2015 NY Slip Op 04079 [128 AD3d 747] |
| May 13, 2015 |
| Appellate Division, Second Department |
[*1]
| Jose Arriola, Respondent, v City of New York,Defendant/Third-Party Plaintiff-Respondent-Appellant, and New York City Departmentof Correction, Respondent-Appellant. Liro Engineering & ConstructionManagement, P.C., Third-Party Defendant/Second Third-PartyPlaintiff-Appellant-Respondent; Atlas Fence Company, Third-PartyDefendant-Respondent; C & L Contracting Corp., Second Third-PartyDefendant-Respondent. |
Lewis Johs Avallone Aviles, LLP, Islandia, N.Y. (Robert A. Lifson of counsel), forthird-party defendant second third-party plaintiff-appellant-respondent.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Edward F.X. Hart andTahirih M. Sadrieh of counsel), for defendant/third-party plaintiff-respondent-appellantand defendant-respondent-appellant.
Andrea G. Sawyers, Melville, N.Y. (David R. Holland of counsel), for secondthird-party defendant-respondent.
In an action to recover damages for personal injuries, Liro Engineering &Construction Management, P.C., appeals, as limited by its brief, from so much of anorder of the Supreme Court, Queens County (Flug, J.), dated December 7, 2012, asdenied its cross motion, in effect, for conditional summary judgment on its causes ofaction for contractual indemnification, and the City of New York and the New York CityDepartment of Correction cross-appeal, as limited by their brief, from so much of thesame order as denied the cross motion of the City of New York, in effect, for conditionalsummary judgment on its causes of action for contractual indemnification against LiroEngineering & Construction Management, P.C.
Ordered that the cross appeal by the New York City Department of Correction isdismissed, as it is not aggrieved by the portion of the order cross-appealed (seeCPLR 5511; Mixon v TBV,Inc., 76 AD3d 144, 156-157 [2010]); and it is further,
Ordered that the order is affirmed insofar as appealed from and insofar ascross-appealed from by the defendant City of New York; and it is further,
Ordered that one bill of costs is awarded to C & L Contracting Corp., payableby [*2]Liro Engineering & ConstructionManagement, P.C., and the defendants City of New York and New York CityDepartment of Correction.
The plaintiff, an employee of the third-party defendant, Atlas Fence Company(hereinafter Atlas), was injured while working at a construction site when he fell from aladder. The plaintiff commenced this action to recover damages for personal injuriesagainst, among others, the owner of the site, the City of New York, which thencommenced a third-party action for, inter alia, contractual indemnification, against Atlasand the construction manager, Liro Engineering & Construction Management, P.C.(hereinafter Liro). Liro then commenced a second third-party action against the generalcontractor, C & L Contracting Corp. (hereinafter C & L), asserting claimsagainst it for, among other things, contractual indemnification.
C & L moved to compel certain discovery from all parties. Liro thencross-moved, in effect, for conditional summary judgment on its second third-partycauses of action for contractual indemnification against C & L. The City thenseparately cross-moved, in effect, for conditional summary judgment on its third-partycauses of action for contractual indemnification against Liro. The Supreme Court deniedthe motion and the cross motions.
"A court may render a conditional judgment on the issue of contractual indemnity,pending determination of the primary action so that the indemnitee may obtain theearliest possible determination as to the extent to which he or she may expect to bereimbursed" (Jamindar vUniondale Union Free School Dist., 90 AD3d 612, 616 [2011]; see George v Marshalls of MA,Inc., 61 AD3d 925, 931 [2009]; O'Brien v Key Bank, 223 AD2d 830,831 [1996]). The party seeking contractual indemnification must establish that it was freefrom negligence and that it may be held liable solely by virtue of statutory or vicariousliability (see Van Nostrand vRace & Rally Constr. Co., Inc., 114 AD3d 664, 667 [2014]; Jamindar vUniondale Union Free School Dist., 90 AD3d at 616; Correia v Professional DataMgt., 259 AD2d 60, 65 [1999]).
The proponent of a motion for summary judgment must make a prima facie showingof entitlement to judgment as a matter of law, tendering sufficient evidence todemonstrate the absence of any material issues of fact (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr.,64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562[1980]). Failure to make such prima facie showing requires denial of the motion,regardless of the sufficiency of the opposing papers (see Alvarez v ProspectHosp., 68 NY2d at 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d at853). Here, Liro failed to establish, prima facie, that it was free from negligence withregard to the happening of the accident. In support of its cross motion, it submitted onlythe pleadings and its contract with C & L, but no evidence regarding thecircumstances of how the accident occurred. On appeal, Liro relies on the depositiontranscripts that it submitted in reply to C & L's opposition to Liro's cross motion.The moving party, however, cannot meet its prima facie burden by submitting evidencefor the first time in reply (seeDiLapi v Saw Mill Riv., LLC, 122 AD3d 896, 900 [2014]; 6014 Eleventh Ave. Realty, LLC v6014 AH, LLC, 114 AD3d 661, 662 [2014]; Daguerre, S.A.R.L. v Rabizadeh, 112 AD3d 876, 879[2013]; Cotter v BrookhavenMem. Hosp. Med. Ctr., Inc., 97 AD3d 524, 525 [2012]; Tingling v C.I.N.H.R., Inc., 74AD3d 954, 956 [2010]). Accordingly, the Supreme Court properly denied Liro'scross motion, in effect, for conditional summary judgment on its second third-partycauses of action for contractual indemnification.
For the same reasons, the City failed to establish its prima facie entitlement tojudgment as a matter of law. In support of its separate cross motion, in effect, forconditional summary judgment on its third-party causes of action for contractualindemnification against Liro, it relied on the evidence submitted by Liro on its crossmotion and additionally submitted only the contract between the City and Liro. TheCity's submissions failed to establish, prima facie, that it was free from negligence withregard to the happening of the accident. Accordingly, the Supreme Court properly deniedits cross motion. To the extent that the City argues that it was entitled to an award ofconditional summary judgment on the issue of contractual indemnity as to C & L,based on the record, it appears that the City has asserted no cause of action against C& L, which was not named as third-party a defendant in the third-party complaint.Mastro, J.P., Leventhal, Cohen and Maltese, JJ., concur.