Opinion
506580/14
12-12-2019
Elvis CABRAL, Plaintiff, v. 229 WEST 43RD STREET CONDOMINIUM, BRE/NYT, LLC., Equity Office Properties, LLC, AI 229 West 43RD Street Property Owner, LLC, Africa-Israel, USA, and Schindler Elevator Corporation, Defendants.
Attorney for Plaintiff Elvis Cabral, Peter P. Traub, Esq., Stevens & Traub, PLLC, 336 West 37th Street — Suite 430, New York, New York 10018, (212) 996-7442 Attorney for Defendants/Third Party Plaintiffs, 229 West 43rd Street Condominium, BRE/NYT, LLC and Equity Office Properties, LLC Michael J. DeSantis, Esq., Strongin Rothman & Abrams, 80 Pine Street, 10th Floor, New York, New York 10005 Attorney for Defendants AI 229 West 43rd Street Property Owner, LLC And Africa-Israel, USA, Paul X. Lima, Esq., Sobel Pevzner, LLC, 30 Vesey Street, 8th Floor, New York, New York 10007 (212) 216-0020 Attorney for Defendant Schindler Elevator Corp., Laura C. Breitenbach, Esq., Connell Foley LLP, One Newark Center, Newark, New Jersey 07102 (973) 436-5800 Attorney for Third-Party Defendant Guitar Center Stores, Inc., Patrick J. Shelley, Esq., Kerley Walsh Matera & Cinquemani, P.C., 2174 Jackson Avenue, Seaford, New York 11783
Attorney for Plaintiff Elvis Cabral, Peter P. Traub, Esq., Stevens & Traub, PLLC, 336 West 37th Street — Suite 430, New York, New York 10018, (212) 996-7442
Attorney for Defendants/Third Party Plaintiffs, 229 West 43rd Street Condominium, BRE/NYT, LLC and Equity Office Properties, LLC Michael J. DeSantis, Esq., Strongin Rothman & Abrams, 80 Pine Street, 10th Floor, New York, New York 10005
Attorney for Defendants AI 229 West 43rd Street Property Owner, LLC And Africa-Israel, USA, Paul X. Lima, Esq., Sobel Pevzner, LLC, 30 Vesey Street, 8th Floor, New York, New York 10007 (212) 216-0020
Attorney for Defendant Schindler Elevator Corp., Laura C. Breitenbach, Esq., Connell Foley LLP, One Newark Center, Newark, New Jersey 07102 (973) 436-5800
Attorney for Third-Party Defendant Guitar Center Stores, Inc., Patrick J. Shelley, Esq., Kerley Walsh Matera & Cinquemani, P.C., 2174 Jackson Avenue, Seaford, New York 11783
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of defendants AI 229 West 43rd Street Property Owner, LLC and Africa-Israel, USA, filed on October 31, 2018, under motion sequence eighteen, for an order, pursuant to CPLR 3212, granting summary judgment in their favor dismissing the complaint of plaintiff Elvis Cabral in its entirety and any cross-claims asserted against them.
-Notice of Motion
-Affirmation in Support
-Exhibits A to AAA
-Affirmation in Partial Opposition by 229 West 43rd Street Condominium
BRE/NYT, LLC and Equity Office Properties, LLC
-Exhibits 1- 3
-Plaintiff's Affirmation in Opposition
-Reply Affirmation
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of defendants/third-party plaintiffs 229 West 43rd Street Condominium BRE/NYT, LLC and Equity Office Properties, LLC, filed on October 31, 2018, under motion sequence nineteen, for an order, pursuant to CPLR 3212 granting summary judgment in their favor: (1) dismissing plaintiff's complaint in its entirety; (2) dismissing in its entirety the cross-claims and/or counterclaims of the defendants asserted against them; (3) on liability on their cross-claims for contractual indemnification and recovery of defense costs against defendant Schindler Elevator Corporation; (4) on liability on their cross-claims for contractual indemnification and recovery of defense costs against defendant AI 229 West 43rd Street Property Owner, LLC; and, (5) on liability on their third-party claims for contractual indemnification and recovery of defense costs against third-third defendant Guitar Center Stores, Inc.
-Notice of Motion
-Affirmation in Support
-Exhibits A to W
-Affirmation in Opposition by Schindler Elevator Corporation
-Exhibit A
-Memorandum of Law in Opposition by Schindler Elevator Corporation
-Affirmation in Opposition by Plaintiff
-Affirmation in Partial Opposition-Guitar Center Stores, Inc.
-Affirmation in Opposition by AI 229 West 43rd Street Property Owner, LLC
-Reply Affirmation
-Exhibit A
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of cross motion of defendants AI 229 West 43rd Street Property Owner, LLC and Africa-Israel, USA, filed on April 30, 2019, under motion sequence twenty-two, for an order, pursuant to CPLR 3212 granting summary judgment in their favor on their cross-claims against defendants 229 West 43rd Street Condominium BRE/NYT, LLC and Equity Office Properties, LLC to recover defense costs.
-Notice of Cross Motion
-Affirmation in Support
-Affirmation in Opposition by 229 West 43rd Street Condominium, BRE/NYT, LLC and Equity Office Properties, LLC
-Reply
BACKGROUND
On July 17, 2014, Elvis Cabral (he reinafter Cabral) commenced the instant action to recover damages for personal injuries by electronically filing a summons and verified complaint with the Kings County Clerk's Office (KCCO). On September 15, 2014, Cabral filed an amended summons and verified complaint against BRE/NYT, LLC and Schindler Elevator Corporation with the KCCO. Subsequently, on July 12, 2016 Cabral filed a third amended summons and a second amended verified complaint which added 229 West 43rd Street Condominium, Equity Office Properties, LLC, AI 229 West 43rd Street Property Owner, LLC and Africa-Israel, USA as defendants.
Plaintiff's second amended verified complaint alleges eighty-two allegations of fact to support one cause of action for negligence. Plaintiff's second amended verified complaint and deposition transcript allege the following salient facts. On July 15, 2014, Cabral, an apprentice carpenter, was working in a condominium unit located at 218 West 44th Street. This location is part of the 229 West 43 Street Condominium building. Plaintiff alleges that due to defendants' negligence he sustained injuries when the doors of a freight elevator closed upon his wrist.
Cabral's testimony further describes the incident as follows. On the incident date, Cabral was working in a unit located in the sub-basement of a condominium leased by Guitar Center Stores, Inc. At approximately 9:00 a.m., while leaving his work area for a morning break, he attempted to catch freight elevator No.15, whose doors were closing, by swiping his hand up and down between the closing doors. However, instead of opening, the elevator doors closed on Cabral's wrist. Cabral attempted to use a hammer from his tool belt to pry and wedge the door open. He further contends that the elevator car began to ascend with his hand and his hammer still between the doors. Cabral was then able to pull his hand free using force but the tip of his finger cut off, among other things.
On July 21, 2016, AI 229 West 43rd Street Property Owner, LLC and Africa-Israel, USA jointly interposed a verified answer with counterclaims to the second amended verified complaint. On September 2, 2016, Schindler Elevator Corporation filed its verified answer with the KCCO. On September 23, 2016, 229 West 43rd Street Condominium, BRE/NYT, LLC and Equity Office Properties, LLC jointly filed their verified answer with the KCCO.
On July 5, 2017, 229 West 43rd Street Condominium, BRE/NYT, LLC and Equity Office Properties, LLC commenced a third-party action against Guitar Center Stores, Inc. by filing a third-party summons and complaint with the KCCO. The third-party complaint alleged two causes of action for contractual indemnification and failure to procure insurance. Guitar Center Stores, Inc. joined issue with the filing of its answer on July 25, 2017.
On May 30, 2018, plaintiff filed a note of issue with the KCCO. By order of this Court dated July 20, 2018, the parties' time to move for summary judgment was extended to October 31, 2018.
Motions Presented to the Court
On October 31, 2018, third-party defendant Guitar Center Stores, Inc. filed a notice of motion, under motion sequence seventeen, for an order pursuant to CPLR 3212 granting summary judgment in its favor dismissing 229 West 43rd Street Condominium, BRE/NYT, LLC and Equity Office Properties, LLC' third-party complaint.
On the same day, defendants AI 229 West 43rd Street Property Owner, LLC and Africa-Israel, USA, jointly filed a notice of motion, under motion sequence eighteen, for an order granting summary judgment in their favor dismissing Cabral's complaint and the cross-claims asserted against them.
On October 31, 2018, defendants/third-party plaintiffs 229 West 43rd Street Condominium, BRE/NYT, LLC and Equity Office Properties, LLC, filed a notice of motion, under motion sequence nineteen, for an order granting, among other things, summary judgment in their favor dismissing Cabral's complaint.
On the same day, Schindler Elevator Corporation, filed a notice of motion, under motion sequence twenty, for an order pursuant to CPLR 3212, granting summary judgment in its favor dismissing Cabral's complaint and the cross-claims asserted against them.
Decision and Order for Motions Presented
On May 8, 2019, the motions were orally argued and the Court reserved decision on the following motions. The motion by the defendants AI 229 West 43rd Street Property Owner, LLC and Africa-Israel, USA, under motion sequence eighteen, was reserved. The Court reserved in part the branches of the motion by defendants/third-party plaintiffs 229 West 43rd Street Condominium, BRE/NYT, LLC and Equity Office Properties, LLC, under motion sequence nineteen, that, among other things, sought dismissal of the plaintiff's complaint. The branch of the motion which sought summary judgment on the third-party complaint against Guitar Center Stores, Inc. was decided as follows. The Court found the defendants/third-third plaintiffs failed to make a prima facie showing of entitlement to summary judgment and denied this branch of the motion.
The remaining motions were decided as follows. Third-party defendant Guitar Center Stores, Inc.'s motion to dismiss the third-party complaint against it was granted for the following reasons. In particular, the Court found that the third-third defendant made a prima facie showing that there was no privity of contract between the parties in the third-third action. Consequently, the cause of action in the third-party complaint which sought contractual indemnification was dismissed. The third-party plaintiffs 229 West 43rd Street Condominium, BRE/NYT, LLC and Equity Office Properties, LLC did not submit opposition to the branch of Guitar Center Stores, Inc.'s motion which sought dismissal of the cause action for breach of contract for failure to procure insurance. Therefore, it was dismissed as abandoned. The Court having found that Guitar Center Stores, Inc. made a prima facie showing of entitlement shifted the burden to the third-third plaintiffs. However, the third-party plaintiffs failed to raise a triable issue of fact.
Schindler Elevator Corporation's motion for summary judgment in its favor was denied for failure to eliminate triable issues of fact as to its negligence. Therefore, Schindler Elevator Corporation failed to make a prima facie showing of entitlement to judgment in its favor.
LAW AND APPLICATION
Plaintiff's complaint alleges that the defendants were jointly and concurrently negligent in the ownership, management, supervision, and maintenance of freight elevator No. 15 that caused injury to his hand. It is undisputed by the parties that freight elevator No. 15 is associated with a condominium located at 229 West 43rd Street, New York, New York. This condominium is divided into two units that the defendants refer to as the retail unit and the commercial unit. The retail unit includes the sub-cellar and cellar levels, a portion of the ground floor, a portion of the fourth floor, and the first through the third floors of the Condominium. The commercial unit includes a portion of the ground floor, a portion of the fourth floor, and the fifth through the sixteenth floors of the Condominium. AI 229 West 43rd Street Property Owner, LLC is the owner of the retail unit and Africa-Israel, USA is its managing agent (hereinafter collectively as the AI defendants). BRE/NYT, LLC is the owner of commercial unit and Equity Office Properties, LLC is its managing agent. 229 West 43rd Street Condominium (hereinafter 229 Board) is the condominium's board of managers.
In the instant motions, the AI defendants seek the dismissal of plaintiff's complaint and any cross-claims asserted against them; similarly, BRE/NYT, LLC, Equity Office Properties, LLC and 229 Board (hereinafter collectively as BRE defendants), jointly, seek the dismissal of the plaintiff's complaint, among other things.
Summary Judgment
It is well settled that in order to be entitled to summary judgment, the movant must make prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case ( Winegrad v. New York Univ. Med. Center , 64 NY2d 851, 853 [1985] ). "Pursuant to CPLR 3212 (b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, "that there is no defense to the cause of action or that the cause of action or defense has no merit" ( People ex rel. Spitzer v. Grasso , 50 AD3d 535, 544 [1st Dept 2008] ). Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion ( People ex rel. Spitzer, 50 AD3d at 544 citing Marine Midland Bank v. Dino & Artie's Automatic Transmission Co. , 168 AD2d 610 [2nd Dept 1990] ).
Only if the movant succeeds in meeting its burden will the burden shift to the opponent to demonstrate through legally sufficient evidence that there exists a triable issue of fact ( Richardson v. County of Nassau , 156 AD3d 924, 925 [2nd Dept 2017] citing Alvarez v. Prospect Hosp ., 68 NY2d 320, 324 [1986] ). Where a movant's initial motion papers reveal the existence of a triable issue of fact the motion should be denied ( Richardson , 156 AD3d at 925 citing Kleyner v. City of New York , 115 AD3d 710 [2nd Dept 2014] ).
Elevators and Premise Liability
Property owners have a duty to maintain their premises in a reasonably safe condition ( Nunez v. Chase Manhattan Bank , 155 AD3d 641, 643 [2nd Dept 2017] citing Walsh v. Super Value, Inc., 76 AD3d 371, 375 [2nd Dept 2010] ). In order to hold a property owner liable for a breach of this duty, a plaintiff must prove not only that a defective condition existed and was a proximate cause of his or her injuries, but also that the property owner either created the defective condition or had actual or constructive notice of its existence ( Nunez , 155 AD3d at 643 citing Goodlow v. 724 Fifth Ave. Realty, LLC, 127 AD3d 1138, 1139—1140 [2nd Dept 2015] ).
As relevant here, a property owner can be held liable for an elevator-related injury where there is a defect in the elevator, and the property owner has actual or constructive notice of the defect ( Palladino v. New York City Hous. Auth., 173 AD3d 1196, 1196 [2nd Dept 2019] ). Moreover, negligence in the maintenance of an elevator may be inferred from evidence of prior malfunctions ( Roserie v. Alexander's Kings Plaza, LLC , 171 AD3d 822, 823 [2nd Dept 2019] quoting Dykes v. Starrett City, Inc ., 74 AD3d 1015, 1016 [2nd Dept 2019].
In order to recover damages resulting from a breach of a property owner's duty, a plaintiff must prove all the essential elements of the cause of action. By contrast, a defendant property owner moving for summary judgment dismissing such a claim meets its prima facie burden by negating a single essential element ( Nunez , 155 AD3d at 643 citing Kam Lin Chee v. DiPaolo, 138 AD3d 780, 782—783 [2nd Dept 2016] ).
The AI Defendants Claim of No Duty
The AI defendants contend that they have no duty to the plaintiff. While the AI defendants acknowledge that AI is a unit owner, they contend that the freight elevator is a "common element" and as such it is the condominium board's duty to maintain a common element rather than a unit owner. Therefore, only the 229 Board owes a duty to the plaintiff.
Generally, a finding of negligence must be based on a breach of duty and whether the alleged tortfeasor owed a duty of care to the injured party is a threshold question (see Dautaj v. All. El. Co. , 110 AD3d 839, 840 [2nd Dept 2013] citing Bono v. Halben's Tire City, Inc ., 84 AD3d 1137, 1139 [2nd Dept 2011] ). In particular, liability for a dangerous or defective condition on property is generally predicated upon ownership, occupancy, control or special use of the property ( Leibovici v. Imperial Parking Mgt. Corp. , 139 AD3d 909, 909 [2nd Dept 2016] quoting Breland v. Bayridge Air Rights, Inc. , 65 AD3d 559, 560 [2nd Dept 2009] ). For purposes of liability for a dangerous or defective condition, condominium common elements are solely under the control of the board of managers ( O'Toole v. Vollmer , 130 AD3d 597, 598 [2nd Dept 2015] citing Pekelnaya v. Allyn , 25 AD3d 111, 120 [1st Dept 2005).
Here, the AI defendants aver that the Declaration and By-Laws (hereinafter the governing documents) support their contention. The governing documents describe common elements as follows:
7.1 The Common Elements of the Condominium (the "Common Elements") consist of the entire Property including the Land and all parts of the Building and improvements thereon other than the Units. The Common Elements include, but are not limited to those rooms, areas, corridors, spaces and other parts of the Building and all facilities... located or contained therein for the common use of the Units and the Unit Owners or which are necessary or convenient for the existence, maintenance, operation or safety of the Property. The Common Elements are comprised of (a) the General Common Elements, and (b) the Retail Limited Common Elements and the Commercial Limited Common Elements (collectively, the "Limited Common Elements")...
According to the governing documents the characterization of a common element changes the obligations of the unit owners and the condominium board. Furthermore, responsibility for maintenance and upkeep, among other things, are delegated to either the retail unit owner or the commercial unit owner depending on the common element's categorization as a limited common element. The AI defendants submissions do not conclusively establish that freight elevator No. 15 is a general common element (see Bd. of Managers of Wharfside Condominium v. Nehrich , 73 AD3d 822, 825 [2nd Dept 2010] ). Therefore, the AI defendants have failed to eliminate triable issues regarding their duty to the plaintiff.
In Bd. of Managers of Wharfside Condominium v. Nehrich , the Appellate Division found that contrary to the Condominium Board's contention the governing documents did not establish that the terrace was a common element subject to its authority.
Sole Proximate Cause
The AI defendants, nevertheless, contend that even if they owed a duty of care to the plaintiff, he is the sole proximate cause of his injury. They aver that plaintiff's testimony that he swiped his hand between the closing doors of freight elevator No. 15 establishes that he is the sole proximate cause of his injury.
Although foreseeability and proximate cause are generally questions for the factfinder, there are instances in which proximate cause can be determined as a matter of law because only one conclusion may be drawn from the established facts ( Hain v. Jamison , 28 NY3d 524, 529 [2016] citing Derdiarian v. Felix Contr. Corp. , 51 NY2d 308, 315 [1980] ). Such a case may arise when a plaintiff's actions constitute the sole proximate cause of his or her injuries or where the plaintiff's actions are "an unforeseeable superseding event, sufficient to break the causal chain and thus absolve the defendant of liability" ( Conte v. Orion Bus Indus., Inc. , 162 AD3d 638, 640 [2nd Dept 2018] quoting Amatulli v. Delhi Constr. Corp. , 77 NY2d 525, 534 [1991] ).
The AI defendants' submissions included, among other things, a maintenance report that indicates that a service call for the freight elevator was initiated two weeks prior to the incident due to problems with an interlock mechanism in the elevator doors. Under these circumstances, it cannot be said that the AI defendants bore no responsibility for plaintiff's injuries. Rather, the plaintiff's conduct is relevant to the fact-finder's determination of his comparative negligence, but it does not excuse the AI defendants' alleged negligence (see Figueroa v. City of New York , 89 AD3d 980, 981 [2nd Dept 2011] ). Accordingly, the AI defendants have failed to demonstrate that the plaintiff was the sole proximate cause of his injury.
Inasmuch as, the maintenance report creates a triable issue as to sufficiency of the repairs (see Roserie , 171 AD3d at 823 ). The AI defendants have failed to establish that they lacked actual or constructive notice. Therefore, the Court does not reach the sufficiency of the oppositions' papers (see Winegrad , 64 NY2d 851 ).
Cross-claims
The AI defendants also moved pursuant to CPLR 3212 for an order dismissing the cross claims asserted by their co-defendants against them. However, contrary to the requirements of CPLR 2214 they submitted no argument or legal authority for the relief requested. Consequently, in the interests of judicial economy, this branch of their motion must be denied.
The BRE defendants' motion for Summary Judgment
The BRE defendants also seek summary judgment dismissing plaintiff's complaint on the grounds that they lacked actual or constructive notice of a defective condition in the elevator. The BRE defendants rely on the testimony of Joseph Potestivo (hereinafter Potestivo), a Schindler Elevator Corporation supervisor, who inspected the elevator after the incident. Potestivo testified that there was no evidence of a malfunction prior to the accident and that the plaintiff's hammer caused the interlock in the elevator doors to malfunction. Potestivo did not witness the accident. Like the AI defendants, the BRE defendants annex the maintenance report, which creates a triable issue as to the sufficiency of the repair of the elevator doors. Potestivo's assertions are conclusory and do not demonstrate the BRE defendants entitlement to judgment as a matter of law.
The BRE Defendants' Claims for Indemnification
The BRE defendants seek contractual indemnification from Schindler Elevator Corporation based on an indemnity clause in an agreement annexed to their motion papers, which they refer to as the Schindler Maintenance Agreement (hereinafter maintenance agreement).
Contractual indemnification emerges not out of an agreement to perform work, but out of an agreement to indemnify (see Nesterczuk v. Goldin Mgt., Inc. , 77 AD3d 800, 804-05 [2nd Dept 2010] ). A party's right to contractual indemnification depends upon the specific language of the relevant contract ( Goodlow, 127 AD3d at 1140-41 citing Desena v. North Shore Hebrew Academy, 119 AD3d 631, 636 [2nd Dept 2014] ). The promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances ( Goodlow, 127 AD3d at 1140-41 citing Hooper Assoc. v. AGS Computers, 74 NY2d 487, 491—492 [1989] ). Furthermore, the intention to indemnify a party against its own negligence must be unequivocally expressed (see Hogeland v. Sibley, Lindsay & Curr Co. , 42 NY2d 153 [1977] ).
In the instant motion, the BRE defendants rely on a partially redacted agreement annexed to their motion to support their contention that they are entitled to contractual indemnification. The BRE defendants focus on a clause within the agreement to support their contention, which indicates as follows:
To the fullest extent permitted by law, Contractor shall indemnity, defend and hold harmless CBRE and Owner and each aforementioned parties, affiliated companies, partners, successors, assigns, heirs, legal representative, devisees, officers, directors, shareholders, employees and agents (collectively, "INDEMNITEES") for, from and against any and all claims and liabilities relating to bodily injury or property damage to the extent caused by the negligence or misconduct of Contractor's officers, agents, employees, or subcontractors, even if such claims or liabilities arise from or are attributed in part to negligence of any Indemnitee, or in the case of bodily injury claims made by Contractor's employees, are alleged to have been caused wholly by the negligence of Indemnittees.
The agreement identifies the parties involved as Schindler Elevator Corporation and another entity called CB Richard Ellis, Inc. or abbreviated as CBRE. While the BRE defendants refer to themselves as proper indemnitees as per the agreement, they do not explain their relationship to CB Richard Ellis, Inc. To the extent that the relationship of the BRE defendants to the contract is unclear, they have not demonstrated, prima facie, their entitlement to summary judgment on their claims for indemnification against Schindler Elevator Corporation. Therefore, the Court does not reach the sufficiency of Schindler Elevator Corporation's opposition papers (see Winegrad, 64 NY2d 851 ).
The BRE defendants also seek indemnification against AI 229 West 43rd Street Property Owner, LLC. The BRE defendants rely on section 11.9 of the condominium declaration which states in pertinent part as follows:
Subject to the waiver of claims and waiver of subrogation set forth in this Article 11, each Unit Owner covenants to Indemnify, defend and hold each other Unit Owner...and the Condominium Board and its Managing Agent harmless...from and against any and all Costs in connection with loss of life, personal injury and/or damage to property arising from or out of any occurrence in or upon the Unit (or any Limited Common Element appurtenant to such Unit, or the General Common Elements) owned by such Unit Owner, or occasional wholly, or in part, by any gross negligence, willful misconduct or bad faith of such Unit Owner, or its respective Related Parties.
As previously articulated, there are triable issues as to whether the freight elevator is a "limited common element" or a "general common element." Therefore, the BRE defendants have failed to demonstrate, prima facie, entitlement to judgment on its cross-claims against the AI defendants.
Furthermore, the BRE defendants have failed to demonstrate that they are not negligent in causing plaintiff's accident as a matter of law, therefore their cross-claims for indemnification are premature ( Martinez v. City of New York , 73 AD3d 993, 901 [2nd Dept 2010] citing Nasuro v. PI Assoc., LLC , 49 AD3d 829 [2nd Dept 2008] ).
The AI's Defendants Motion for Defense Costs
By notice of cross motion, AI defendants also seek summary judgment on its cross-claims to recover defense costs against the BRE defendants. The following is noted regarding the AI defendants cross motion. The instant motion under motion sequence twenty-two is similar to the relief requested in their motion under motion sequence eighteen, previously addressed in this decision. Furthermore, the instant motion, filed on April 30, 2019, is untimely as the Court, in a prior order extended the parties time to move for summary judgment to October 31, 2018. The AI defendants did not seek leave to serve and file this late summary judgment motion.
Moreover, even if the motion were addressed, it has previously been articulated that the issue of indemnification is premature as the AI defendants have not established their freedom from liability.
CONCLUSION
Defendants AI 229 West 43rd Street Property Owner, LLC and Africa-Israel, USA's motion for an order pursuant to CPLR 3212 granting summary judgment in their favor dismissing the plaintiff Elvis Cabral's complaint in its entirety and any cross-claims asserted against them is denied.
Defendants/third-party plaintiffs 229 West 43rd Street Condominium BRE/NYT, LLC and Equity Office Properties, LLC's motion for an order, pursuant to CPLR 3212 granting summary judgment in their favor dismissing plaintiff's complaint in its entirety is denied.
Defendants/third-party plaintiffs 229 West 43rd Street Condominium, BRE/NYT, LLC and Equity Office Properties, LLC's motion for an order, pursuant to CPLR 3212 granting summary judgment in their favor dismissing in its entirety the cross-claims of defendants Schindler Elevator Corporation, AI 229 West 43rd Street Property Owner, LLC and Africa-Israel, USA is denied.
Defendants/third-party plaintiffs 229 West 43rd Street Condominium, BRE/NYT, LLC and Equity Office Properties, LLC's motion for an order, pursuant to CPLR 3212 granting summary judgment in their favor on their cross-claims for contractual indemnification and recovery of defense costs against defendant Schindler Elevator Corporation is denied.
Defendants/third-party plaintiffs 229 West 43rd Street Condominium BRE/NYT, LLC and Equity Office Properties, LLC's motion for an order, pursuant to CPLR 3212 granting summary judgment in their favor on their cross-claims for contractual indemnification and recovery of defense costs against defendant AI 229 West 43rd Street Property Owner, LLC. is denied.
The foregoing constitutes the decision and order of this Court.