Opinion
Index No. 711913/2019 Motion Seq. Nos. 002 003
09-16-2021
ANTHONY CARDILLO and JILL PARSHLEY, Plaintiffs, v. 3707 LLC and HAWKEYE ELECNOR GROUP, Defendants.
Unpublished Opinion
Motion Date: August 10, 2021
Present: HONORABLE DENIS J. BUTLER Justice
SHORT FORM ORDER
Denis J. Butler, J.S.C.
The following papers were read on this motion by defendant 3707 LLC for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint, and summary judgment against Hawkeye on 3707 LLC's cross-claims, and upon this motion by defendant Elecnor Hawkeye LLC s/h/a Hawkeye Elecnor Group for an order, pursuant to CPLR 3212, granting summary judgment to Hawkeye Elecnor Group dismissing the complaint, and summary judgment on all cross-claims against Hawkeye.
Seq. 2 Papers Numbered
Notice of Motion, Affirmation, Exhibits............. . . .E43-67
Affirmation In Opposition, Memorandum of Law, and Exhibits............................................E88-91
Reply Affirmation.......................................E110
Seq. 3 Papers Numbered
Notice of Motion, Affirmation, Exhibits.................E70-91
Affirmation In Opposition, Exhibits.....................E92-97
Plaintiffs' Affirmtion In Opposition, Exhibits..........E98-102
Reply Affirmation............ E108
Reply Memorandum of Law............................. ...E109
Upon the foregoing papers, it is ordered that the motions (seq. 2 and seq, 3) are determined as follows:
This action was brought by plaintiff to recover for personal injuries allegedly suffered from a trip and fall on a public sidewalk on April 16, 2019, as a result of a jutting stoop.
The first branch of defendant 3707 LLC's motion (seq. 2) seeks summary judgment dismissing the complaint pursuant to CPLR 3212.
A proponent for summary judgment is required to make a prima facie showing of entitlement to judgment, as a matter of law, through the submission of sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 24 [1986])- Once the movant establishes prima facie entitlement to judgment, it is incumbent upon the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of triable issues of fact (id.; see Zuckerman v City of New York, 49 N.Y.2d 557, 63 [1980]).
Defendant 3707 LLC has met its prima facie burden of establishing the absence of any triable issue of fact through the affidavit of Rudi Sherbansky, a licensed engineer. The affidavit of Rudi Sherbansky contends, inter alia, that the stoop did not violate any applicable Building Code provisions at the time of its construction, provided adequate space on the sidewalk to walk in front of the premises, and did not contain any defects.
In opposition, plaintiff submits the expert affidavit of a licensed engineer, Robert L. Grunes, who contends that the stoop was an obstruction, and was not open and obvious. Moreover, the affidavit contends that 3707 LLC failed to keep the sidewalk in "reasonably safe condition" for pedestrians.
The conflicting affidavits demonstrate issues of fact as to whether the stoop was an open and obvious obstruction, and whether 3707 LLC failed to keep the sidewalk in "reasonably safe condition" for pedestrians.
As such, the first branch of the motion by defendant 3707 LLC (seq. 2) seeking summary judgment dismissing the complaint is denied.
With respect to the second branch of the motion by defendant 3707 LLC (seq. 2) seeking summary judgment on its cross-claim of indemnification as against Hawkeye, "Common-law indemnification is warranted where a defendant's role in causing the plaintiff's injury is solely passive, and thus its liability is purely vicarious." Bedessee Imports, Inc. v. Cook, Hall &Hyde, Inc., 45 A.D.3d 792, 796 (2d Dept. 2007)) A party which has actively participated in the wrongdoing is not entitled to indemnification. (Balladares v. Southgate Owners Corp., 40 A.D.3d 667, 671 (2d Dep't 2007)).
In support, defendant 3707 LLC contends, inter alia, that codefendant Hawkeye was responsible for the excavation, asphalt placement and barriers on the portion of the sidewalk where plaintiff sustained injuries.
In opposition, defendant Hawkeye contends it is not required to indemnify 3707 LLC as plaintiff has asserted claims of negligence against defendant 3707 LLC and 3707 LLC actively participated in the wrongdoing which caused plaintiff's injuries. (Benedetto v. Carrera Realty Corp., 32 A.D.3d 874(2d. Dep't 2006).
The conflicting affidavits demonstrate issues of fact as to the comparative negligence, if any, of defendants 3707 LLC, and Hawkeye.
As such, the second branch of the motion by defendant 3707 LLC (seq.2) seeking summary judgment on its cross-claim of indemnification as against Hawkeye, is denied.
With respect to the first branch of the motion by defendant Hawkeye (seq. 3) seeking summary judgment against plaintiffs pursuant to CPLR 3212, defendant Hawkeye has met its prima facie burden of establishing the absence of any triable issue of fact through the affidavit of Rudi Sherbansky, a licensed engineer.
The affidavit of Rudi Sherbansky contends, inter alia, the stoop did not violate any applicable Building Code provisions at the time of its construction, provided adequate space on the sidewalk to walk in front of the premises, and did not contain any defects.
In opposition, plaintiffs submit an expert affidavit from a licensed engineer, Robert L. Grunes, who contends that the stoop was an obstruction, not open and obvious, and that Hawkeye failed to keep the sidewalk in "reasonably safe condition" for pedestrians.
The conflicting affidavits demonstrate issues of fact as to whether the stoop was an open and obvious obstruction, and whether Hawkeye failed to keep the sidewalk in "reasonably safe condition". (Smith v. Ravitch, 121 A.D.2d 639, (2d. Dep't. 1986)).
As such, the first branch of the motion by defendant Hawkeye (seq. 3) seeking summary judgment pursuant to CPLR 3212 is denied.
The second branch of defendant Hawkeye's motion seeks summary judgment against 3707 LLC's cross-claim of indemnification. As the conflicting affidavits demonstrate issues of fact as to the comparative negligence, if any, of defendants 3707 LLC, and Hawkeye, the second branch of Hawkeye's motion (seq. 3) seeking summary judgment on 3707 LLC's cross-claim seeking indemnification is denied. (Long v. Seism, 143 A.D.2d 95, (2d. Dep't 1988)).
With respect to the motion by defendant 3707 LLC (seq. 2), the first branch of the motion by defendant 3707 LLC seeking summary judgment against plaintiffs is denied, and the second branch of the motion by defendant 3707 LLC seeking summary judgment on its crossclaim of indemnification from Hawkeye is denied.
With respect to the motion by defendant Hawkeye (seq. 3), the first branch of the motion by defendant Hawkeye seeking summary judgment against plaintiffs is denied, and the second branch of defendant Hawkeye's motion seeking summary judgment as to 3707 LLC's cross-claim is denied.
This constitutes the Decision and Order of the court.