Opinion
2011-08-4
Gary FAMA, et al., Plaintiffs–Respondents,v.CITYSPIRE, INC., et al., Defendants–Appellants,Reckson Associates Realty Corp., et al., Defendants.Cityspire, Inc., et al., Third–Party Plaintiffs–Appellants,v.GlobeOp Financial Services LLC, Third–Party Defendant–Respondent.
Ahmuty, Demers & McManus, Albertson (Brendan T. Fitzpatrick of counsel), for Cityspire, Inc. and Tishman Speyer Properties, L.P., appellants.Morici & Morici, LLP, Garden City (Carolyn M. Canzoneri of counsel), for Fama respondents.Mischel & Horn, P.C., New York (Naomi M. Taub of counsel), for GlobeOp Financial Services LLC, respondent.
Ahmuty, Demers & McManus, Albertson (Brendan T. Fitzpatrick of counsel),
for Cityspire, Inc. and Tishman Speyer Properties, L.P., appellants.Morici & Morici, LLP, Garden City (Carolyn M. Canzoneri of counsel), for Fama respondents.Mischel & Horn, P.C., New York (Naomi M. Taub of counsel), for GlobeOp Financial Services LLC, respondent.
Order, Supreme Court, New York County (Judith J. Gische, J.), entered April 16, 2010, which, insofar as it denied the motion of defendants Cityspire, Inc. and Tishman Speyer Properties, LP for summary judgment dismissing the complaint, and denied their motion for a conditional judgment against defendant GlobeOp Financial Services LLC, unanimously affirmed, without costs. Appeal from aforesaid order insofar as it denied the cross motion of defendant OneSource Facility Services, Inc., s/h/a OneSource Management, Inc. for summary judgment dismissing the complaint unanimously withdrawn in accordance with the terms of the stipulation of the parties hereto.
Plaintiff Gary Fama slipped and fell on wet paper towels in the men's bathroom of premises leased by his employer, third-party defendant GlobeOp, owned by defendant Cityspire and managed by defendant Tishman. Defendant Cityspire had retained OneSource to provide cleaning services. Dismissal of the complaint on the basis that defendants Cityspire and Tishman were out of possession landlords or lacked either actual or constructive notice of the hazardous condition was properly denied ( see Corrales v. Reckson Assoc. Realty Corp., 55 A.D.3d 469, 868 N.Y.S.2d 2 [2008] ). Triable issues of fact regarding notice were raised by the deposition testimony of plaintiff, who stated that he had complained about the condition of the bathroom multiple times, of GlobeOp's witness, who stated that she had passed on complaints about the bathroom to Tishman and of Tishman's witness, who stated that she had received the complaints and passed them on to OneSource ( see David v. New York City Hous. Auth., 284 A.D.2d 169, 171, 727 N.Y.S.2d 404 [2001], see also Lehr v. Mothers Work, Inc., 73 A.D.3d 564, 903 N.Y.S.2d 345 [2010] ). Plaintiffs' action against OneSource has been settled pursuant to a stipulation dated June 13, 2011.
Finally, Cityspire and Tishman failed to meet their prima facie burden of establishing entitlement to summary judgment on the issues of contractual and conditional indemnification. Neither defendant was a party to the sublease agreement upon which they rely to establish indemnity. Further, although Cityspire was a party to the Consent to Sublease, that agreement premises indemnification on the terms of a Master Lease which was not made a part of the record. By failing to submit the Master Lease, Cityspire and Tishman failed to meet their prima facie burden, and questions of fact exist regarding the extent of GlobeOp's obligation, if any, to indemnify Cityspire.