Opinion
2014-07-3
Alberto GALUE, Plaintiff–Respondent–Appellant, v. INDEPENDENCE 270 MADISON LLC, et al., Defendants–Respondents, J. Spaccarelli Construction Co. Inc., Defendant–Appellant–Respondent.
Gannon Rosenfarb Balletti & Drossman, New York (Peter J. Gannon of counsel), for appellant-respondent. Sidney M. Segall, Port Washington, for respondent-appellant.
Gannon Rosenfarb Balletti & Drossman, New York (Peter J. Gannon of counsel), for appellant-respondent. Sidney M. Segall, Port Washington, for respondent-appellant.
Martin Clearwater & Bell LLP, New York (Arjay G. Yao, John L.A. Lyddane and Steven A. Lavietes of counsel), for respondents.
Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered August 21, 2013, which denied plaintiff's motion for partial summary judgment on liability and denied the motion for summary judgment made by defendant J. Spaccarelli Construction Co. Inc. (Spaccarelli), seeking dismissal of plaintiff's complaint and the cross claims of defendants Independence 270 Madison LLC, 270 Madison Avenue Associates LLC and ABS Partners Real Estate LLC (Madison), unanimously modified, on the law, to dismiss Madison's cross-claims against Spaccarelli for contractual indemnification and damages for breach of contract, and otherwise affirmed, without costs.
In this action for personal injuries allegedly sustained by plaintiff when he was hit in the head by a metal paper towel dispenser/receptacle unit that fell out of the wall at a building owned by Madison and operated by ABS, plaintiff's motion seeking partial summary judgment on liability was properly denied. Summary judgment pursuant to res ipsa loquitur is appropriate in only “exceptional cases” and not where, as here, there are issues of fact with respect to the exclusivity of control over the instrumentality that allegedly caused the injury (Morejon v. Rais Const. Co., 7 N.Y.3d 203, 210–212, 818 N.Y.S.2d 792, 851 N.E.2d 1143 [2006] ).
The motion court erred, however, in failing to dismiss Madison's claims against Spaccarelli seeking contractual indemnity and breach of an insurance procurement agreement since Spaccarelli's work at the premises was performed under an accepted proposal containing no such provisions.
Under the circumstances, we decline to search the record to award Madison summary judgment. GONZALEZ, P.J., ACOSTA, DeGRASSE, FREEDMAN, RICHTER, JJ., concur.