Opinion
2013-01-3
Inessa CAFARELLA, et al., Plaintiffs–Respondents, v. 2180 REALTY CORP., Defendant–Appellant, Igor Edelman, etc., Defendant, J.L.F. Home Improvement, Inc., Defendant–Respondent.
Lester Schwab Katz & Dwyer LLP, New York (Howard R. Cohen of counsel), for appellant. Michael A. Ruiz, P.C., Bronx (Steven J. Mines of counsel), for Cafarella respondents.
Lester Schwab Katz & Dwyer LLP, New York (Howard R. Cohen of counsel), for appellant. Michael A. Ruiz, P.C., Bronx (Steven J. Mines of counsel), for Cafarella respondents.
Armienti, DeBellis, Guglielmo & Rhoden LLP, New York (Harriet Wong of counsel), for J.L.F. Home Improvement, Inc., respondent.
GONZALEZ, P.J., FRIEDMAN, SAXE, RICHTER, ABDUS–SALAAM, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti–Hughes, J.), entered May 21, 2012, which denied defendant 2180 Realty Corp.'s motion for summary judgment dismissing the claims asserted against it or, alternatively, for common-law indemnification against defendant J.L.F. Home Improvement, Inc., unanimously affirmed, without costs.
Plaintiff Inessa Cafarella alleges that, while carrying the infant plaintiff, she tripped and fell over a brown or tan colored cement bag, about 7 inches high and 16 inches wide, which was covered in gray dust, while entering the lobby of her apartment building. Plaintiff testified that this bag was being used to prop open the vestibule door and was placed on the floor, which was comprised of brown, gray and tan tiles, directly in front of the door.
Given plaintiff's description of the cement bag and its location, 2180 Realty Corp. failed to make a prima facie showing that the alleged condition was “open and obvious” and not inherently dangerous ( see Lawson v. Riverbay Corp., 64 A.D.3d 445, 883 N.Y.S.2d 199 [1st Dept. 2009]; Westbrook v. WR Activities–Cabrera Mkts., 5 A.D.3d 69, 71–72, 773 N.Y.S.2d 38 [1st Dept. 2004] ).
In the absence of any cross claim for indemnification, no grounds exist upon which to grant 2180 Realty Corp. that relief ( see Hughey v. RHM–88, LLC, 77 A.D.3d 520, 523, 912 N.Y.S.2d 175 [1st Dept. 2010] ).
We have considered 2180 Realty Corp.'s remaining arguments and find them unavailing.