Opinion
Index No. 505876/2019
01-04-2024
PATRICE TRIVELLI, Plaintiff, v. 474 FULTON OWNER LLC., WHARTON REAL ESTATE, WHARTON PROPERTIES LLC., FULTON 2000 CONDOMINIUM and AT&T, Defendants.
Unpublished Opinion
At an IAS Term, Part 83 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 4th day of January, 2024.
DECISION AND ORDER
Hon. Ingrid Joseph, Supreme Court Justice
The following e-filed papers read herein: NYSCEF Doc. Nos.
Motion Seq. No. 3
Notice of Motion/ Affirmation and Memorandum of Law in Support/ Exhibits . ................................................................................................ 63 - 88
Affirmation in Opposition/Exhibits . ..................................................... 99 - 112
Affirmation in Partial Opposition ........................................................ 139 - 140
Reply Affirmations/Exhibits Exhibits ................................................................ 141 - 146; 147
Motion Seq. No. 4
Notice of Motion/ Affirmation in Support/Exhibits . .......................91 - 96
Affirmation in Opposition/Exhibits . .........................114-127
Affirmation in Partial Opposition . .............................................132 - 135
Reply Affirmations/Exhibits . Affirmation Exhibits ............................. 149; 150 - 158
Defendant New Cingular Wireless PCS, LLC (i/s/h/a AT&T) ("New Cingular") moves for an order, pursuant to CPLR 3212, granting it summary judgment dismissing Plaintiff Patrice Trivelli's ("Plaintiff') complaint and all cross-claims against it (Mot. Seq. No. 3). Plaintiff opposes the' branch of New Cingular's motion seeking dismissal of Plaintiffs complaint. Defendants 474 Fulton Owner LLC., Wharton Real Estate, Wharton Properties LLC., Fulton 2000 Condominium (collectively, the "Fulton/Wharton Defendants") oppose the branch seeking dismissal of all cross-claims against New Cingular. The Fulton/Wharton Defendants make a similar motion seeking dismissal of Plaintiffs complaint and all cross-claims against the Fulton/Wharton Defendants (Mot. Seq. No. 4). Plaintiff opposes the Fulton/Wharton Defendants' motion and New Cingular opposes the branch of their motion seeking dismissal of cross-claims.
In the affirmation in opposition, Plaintiffs counsel first asserts that the "affirmation is submitted in partial opposition," but thereafter seeks the denial of the Fulton/Wharton Defendants' motion in its entirety without addressing the portion seeking dismissal of cross-claims (NY St Cts Elec Filing [NYSCEF] Doc No. 114).
In this negligence action, Plaintiff alleges that she sustained injuries on March 17, 2017, at approximately 9:30AM, when a piece of ice struck her head while she was walking on a public sidewalk on Fulton Street in Brooklyn, New York. Plaintiff avers that her accident occurred in front of the premises at 474-482 Fulton Street, more particularly, in front of the AT&T store. However, the AT&T store is located on the first floor of 476 Fulton Street and AT&T's occupation of the property was subject to a lease with 476 Fulton Street LLC. Defendants 474 Fulton Owner LLC and Wharton Properties LLC manage the buildings located at 474 and 476 Fulton Street.
In her deposition testimony, Plaintiffs version of the events leading up the accident are as follows. Plaintiff was walking alone on the sidewalk, with the storefronts to her right. Prior to her accident, she believed the sidewalk was dry, without any snow or ice on the ground. She also did not observe any ice on the buildings on Fulton Street. As she was in front of the AT&T store, Plaintiff testified that a block of ice fell on top of her head. According to Plaintiff, she did not see the ice prior to it falling and was unable to state where the ice came from. At her deposition, Plaintiff was asked to mark an exhibit to indicate the location of the accident. The exhibit reflects a yellow circle, indicating an area on the sidewalk on the left-hand side of the AT&T store. Plaintiff testified that prior to the accident, she had never made any complaints about ice or snow on Fulton Street, the building in which AT&T was located and the buildings on either side of AT&T. Plaintiff also never made any complaints in general about the AT&T store or the stores on either side or the buildings in which they were located. Plaintiff testified that she was unaware of anyone else making a complaint of snow or ice or any other incidents in which someone was struck by falling snow or ice.
The Fulton/Wharton Defendants produced Valon Gjonbalaj, the property manager for Wharton Properties LLC, for a deposition. At the deposition, Mr. Gjonbalaj testified that the roof of the building located at 476 Fulton Street is flat with a parapet that is four or five feet tall. According to Mr. Gjonbalaj, snow or ice on the roof would melt and go through an interior drain. Mr. Gjonbalaj testified that anything above the storefront, including the roof, was the responsibility of the landlord. Based on New Cingular's lease, which was in effect at the time of the accident, the tenants were responsible for the sidewalk in front of their stores and their awnings. Mr. Gjonbalaj further testified that he was never notified of ice or snow falling from the building and he never observed snow or ice accumulated at or around AT&T's awning. Though Mr. Gjonbalaj was "aware of the snow and ice issues," he never advised Aeropostale or AT&T about these potentially hazardous conditions. In addition, Mr. Gjonbalaj testified that he never received press releases from the NYC Department of Buildings concerning snow and ice melt conditions, including one dated March 16, 2017. Mr. Gjonbalaj does not know where the ice Plaintiff claims hit her fell from.
Juan Munoz, the store manager at AT&T at the time of the accident, also testified at a deposition. According to Mr. Munoz, it had snowed within the week of Plaintiffs accident but he did not remember the exact date. Mr. Munoz was shown a work order dated March 14, 2017, submitted by AT&T's property manager Roger Houston requesting snow removal. Mr. Munoz then testified that the request was completed because the sidewalk was cleaned. Mr. Munoz testified that on the morning of the accident, he inspected the outside of the building, including the awning, and did not observe any ice on the sidewalk. After learning of Plaintiff s accident, Mr. Munoz went outside and saw pieces of ice scattered on the floor between the AT&T store and Aeropostale, which is the store located to the right of AT&T. While outside, Mr. Munoz testified that he did not see any snow or ice lodged on the exterior of the building, the awning, or the roof. Mr. Munoz took photographs of the ice he saw shortly after the accident. In the afternoon on the day of the accident, Mr. Munoz also took photographs of fallen ice in front of the Aeropostale store. Mr. Munoz further testified that he did not know of any incidents prior to and after the accident of snow or ice falling from the building in which AT&T was located or the buildings on either side. Mr. Munoz never received a complaint of ice falling from the awning, parapet or roof.
At her deposition, Plaintiff was unable to recognize what was depicted in Mr. Munoz's photographs and could not definitely state whether the ice shown was involved in her accident (NYSCEF Doc No. 103, Trivelli tr. 38:18-40:20).
A site inspection was conducted on May 20, 2020 by New Cingular's engineering expert Jeffrey J. Schwalje. At the time of the inspection, AT&T's awning had changed, but was, according to Mr. Schwalje, a similar design to the awning on the date of the accident. Based on his site inspection and review of the photographs taken by Mr. Munoz, Mr. Schwalje concluded that the ice in the photographs taken shortly after the accident did not fall from AT&T's awning. Mr. Schwalje opined that the angle and surface of AT&T's awning would melt any snow or ice before it could accumulate. In addition, the location of the ice indicated that it could not have originated from AT&T's awning since it was either under the awning or to the right of it. Mr. Schwalje further opined that the small amount and size of the ice falling from a height of approximately 10 feet-the height of AT&T's awning-would not cause any significant injury to a person on the sidewalk. Mr. Schwalje also concluded that the awning did not violate any known codes or standards.
New Cingular asserts that it is entitled to summary judgment because (1) they did not breach a duty of care to Plaintiff since the facts establish that the accident could not have occurred where and how Plaintiff alleges and (2) they did not have notice of any dangerous or defective condition. The Fulton/Wharton Defendants also move for summary judgment on the basis that Plaintiffs entire claim is speculative because Plaintiffs knowledge is limited to being struck by ice and she cannot state what exactly happened or where the ice came from. The Fulton/Wharton Defendants argue that the mere existence of an accident or the establishment of the location where it took place is insufficient to make out a negligence claim.
In opposition to the defendants' motions, Plaintiff avers that they should be denied as premature because New Cingular and the Fulton/Wharton Defendants have not responded to certain discovery demands that concern whether they caused or created the alleged dangerous and defection condition and whether they had actual or constructive notice thereof. Further, Plaintiff alleges that Mr. Schwalje's report should not be considered because it is conclusory and lacks probative value. Plaintiff further argues that her claim is not speculative because the ice could only have come from the awning or banner in front of the AT&T store or from the roof of the building. Though Plaintiff recognizes that she is uncertain as to the exact location where she was struck, she consistently testified that at the time she was struck, the AT&T storefront was to her left. Based on Plaintiffs testimony that she was approximately two feet away from the store at the time and Mr. Schwalje's measurements, Plaintiff was walking at or near the edge of the awning when she was struck. In addition, since Mr. Munoz testified that it had snowed within a week of the date of the accident and a request for snow removal was made three days prior, Plaintiff contends that defendants had sufficient time and opportunity to discover and remedy the ice prior to the accident occurring. With respect to New Cingular, Plaintiff also argues that pursuant to the lease, New Cingular was responsible for maintaining and repairing the awning and sign over its store.
Plaintiff asserts that New Cingular has not responded to the Fulton/Wharton Defendants' Notice for Discovery and Inspection, wherein requests were made for, inter alia, records pertaining to exterior building maintenance or inspection and records of any snow or ice removal or inspection (NYSCEF Doc No. 99, affirmation of plaintiffs counsel in opp to mot ¶ 40). Plaintiff also asserts that the Fulton/Wharton Defendants have not provided certain documents, such as building permits and design records, they had indicated would be produced under separate cover (id. at ¶ 43).
Plaintiff further argues that there is an issue of fact as to whether New Cingular caused or created the dangerous and defective condition. Since the defendants have not produced any records concerning the erection, installation, maintenance or repair of New Cingular's banner and awning, there is an issue of fact as to whether they were designed or constructed in a way to allow for the ice to form and upon melting, to fall to the sidewalk. With respect to Mr. Schwalje, Plaintiff avers that he did not inspect the awning or banner that were in place at the time of the accident and did not provide any records pertaining to their design or dimensions. Moreover, even if the new awning was of similar design, dimensions and construction to the one that existed on the date of the accident, Mr. Schwalje only stated that the design would prevent "significant" accumulation, which does not eliminate the possibility that any snow or ice accumulated at all. In addition, though Mr. Schwalje averred that the metal top surface would melt the snow or ice before it could accumulate, Plaintiff contends that this does not take into account that significant cloud coverage accompanies any snow event, which limits the solar heat that is retained by the metal top surface. Plaintiff also contends that Mr. Schwalje's report should not be considered because Plaintiff and her attorney were not notified of his site inspection.
New Cingular's expert disclosure, with Mr. Schawlje's report, is dated April 13,2022 (NYSCEF Doc No. 85). Plaintiff did not argue that it did not receive a copy.
Plaintiff concedes that Mr. Munoz's testimony establishes that New Cingular did not have actual notice. However, Plaintiff contends that there is an issue of fact as to whether New Cingular had constructive notice thereof and reasonable time to remedy it. Though New Cingular argues that none of the deponents were aware of any prior accident or complaints, Plaintiff contends that its reliance on their lack of personal knowledge is misplaced. First, Plaintiff was not asked whether she had observed any ice or snow on the building where AT&T is located during her prior visits to the area and was not asked when the last time she was present there. Second, Mr. Munoz testified that the snow that fell within a week before the accident was the only time it had snowed during his time working at that specific store. Thus, Plaintiff argues that Mr. Munoz's lack of knowledge of any prior complaints or accidents involving ice is insufficient to establish lack of constructive notice. Third, Plaintiff contends that Mr. Gjonbalaj's testimony lacks credibility. For instance, he testified that he does not inspect the roof when it snows and when he visited the location in 2016 after a snowstorm, he did not inspect the roof or AT&T's awning for ice or snow accumulation. Though Mr. Gjonbalaj testified that he never received any complaints of falling ice or snow, one of the photographs taken by Mr. Munoz shows snow and ice in front of Aeropostale, which Plaintiff contends could have only fallen from the roof or the Aeropostale signs. Finally, since it snowed on March 14, 2017, Plaintiff contends that the block of ice existed for approximately three days prior to the accident, enough time to enable defendants to discover and remedy it.
With respect to the Fulton/Wharton Defendants, Plaintiff argues that there is an issue of fact as to whether they caused or created the dangerous and defective condition or had actual notice thereof. Plaintiff relies on Mr. Gjonbalaj's testimony that he was aware of snow and ice issues and their danger to pedestrians, but he never advised the tenants to shut down the sidewalks in front of their stores or advised them of the NYC Department of Buildings press release. Mr. Gjonbalaj also testified that concerns about this issue had been expressed to him as to other properties. In addition, Plaintiff argue that the Fulton/Wharton Defendants failed to produce records regarding the roof, including complaints and any inspection prior to the accident, thus creating an issue of fact as to whether the condition of the roof caused or contributed to the dangerous and defective condition that caused Plaintiffs injuries. With respect to actual notice, Plaintiff contends that since there are records of complaints about the roof leaking during rain and the Fulton/Wharton Defendants failed to produce relevant records, there is an issue of fact as to actual notice. However, Plaintiff avers that there is evidence that the Fulton/Wharton Defendants had constructive notice based on Mr. Gjonbalaj's testimony regarding his awareness that falling icicles and snow mass presented a danger to pedestrians and failure to advise tenants to shut down the sidewalk or of the press release. In further support, Plaintiff asserts that there was a significant snowstorm three days prior to Plaintiffs accident, requiring snow removal in front of the AT&T store.
In their reply, defendants argue that in her opposition, Plaintiff failed to raise a genuine issue of fact. The Fulton/Wharton Defendants contend that Plaintiff cannot explain where the ice came from and if it came from a building, she is unable to state which one. Even if the ice fell from a building, the Fulton/Wharton Defendants assert that this fact alone is insufficient since ice could form and fall without anyone being negligent. Though Plaintiff argues that the tenants were never provided with the press releases or advisories issued by the Department of Buildings, there is no evidence they were ever sent to the Fulton/Wharton Defendants. Moreover, Plaintiffs contention that the fact that the Fulton/Wharton Defendants did not advise their tenants to shut down the sidewalk is unavailing since tenants do not have the authority to shut down public sidewalks. With respect to Plaintiffs claim of the motions being premature because records relating to the roof have not been produced, the Fulton/Wharton Defendants argue that Plaintiff assumes that the subject ice fell from the roof at 474 Fulton Avenue and that a representative was on the roof after the March 14th snowstorm and before Plaintiffs accident. Further, the Fulton/Wharton Defendants contend that Plaintiffs arguments as to prior complaints of the roof leaking are a red herring since the leak was internal from a ceiling on the first floor. The Fulton/Wharton Defendants also contend that Plaintiff filed a note of issue indicating that no discovery was outstanding. New Cingular further argues that the motions are not premature because (1) the discovery demand served by the Fulton/Wharton Defendants was objected to by New Cingular and was not pursued any further and (2) the discovery demand served by Plaintiff upon the Fulton/Wharton Defendants was objected to approximately a year prior to the motion being filed but was not pursued by Plaintiff.
The Fulton/Wharton Defendants contest the admissibility of this evidence since they were not certified (NYSCEF Doc No. 151, affirmation of Fulton/Wharton Defendants' counsel in reply ¶ 36).
Mr. Gjonbalaj testified that he could not recall if he was on the roof in 2017 and that he does not inspect the roof when it snows (NYSCEF Doc No. 103, Gjonbalaj tr. 22:18-20; 24:4-7).
New Cingular contends it did not have constructive notice because when Mr. Munoz arrived at the store shortly before the accident, he testified that he inspected the outside, including the awning, and there was no snow or ice. Moreover, there is no evidence as to how long the ice existed before the accident. New Cingular also argues that it is undisputed that Aeropostale installed the banner, not New Cingular; thus, any argument that New Cingular created the condition based on the erection of the banner is untenable. New Cingular further contends that Mr. Schwalje's opinion is not conclusory and should be considered. Moreover, since Mr. Schwalje opined that the ice could not have fallen from the awning, New Cingular did not owe Plaintiff a duty of care.
Both New Cingular and the Fulton/Wharton Defendants also move to dismiss each other's cross-claims for contribution and indemnification. According to New Cingular and the Fulton/Wharton Defendants, neither are liable and therefore, common law contribution and indemnification do not apply. With respect to contractual indemnification, New Cingular and the Fulton/Wharton Defendants point out that the lease is with 476 Fulton Street, LLC, and not any of the named defendants. The Fulton/Wharton Defendants argue that the lease does not contain any language that requires them to indemnify New Cingular and New Cingular argues that its contractual obligations are owed solely to non-party 476 Fulton Street, LLC. Though New Cingular does not dispute that only 476 Fulton Street, LLC executed the lease, New Cingular argues that the Fulton/Wharton Defendants have statutory and contractual obligations pertaining to 474-482 Fulton Avenue. Further, to the extent that any of the defendants are liable, New Cingular contends that there are issues of fact whether the Fulton/Wharton Defendants complied with their duties to manage, maintain, repair, control and supervise 474-482 Fulton Avenue. New Cingular further avers that its cross-claims for common law contribution and indemnification should not be dismissed because if it is found liable, its liability would be is caused, in whole or in part, by the Fulton/Wharton Defendants' failure to manage, control, supervise and inspect 474-482 Fulton Avenue. However, the Fulton/Wharton Defendants assert that as a tenant, New Cingular would not be vicariously liable for them as landowning entities.
On a motion for summary judgment, the burden rests with the movant to demonstrate, through admissible evidence, that there are no triable issues of fact and that it is entitled to judgment as a matter of law (see GTF Mktg., Inc. v Colonial Aluminum Sales, Inc., 66 N.Y.2d 965, 967 [1985]; Englington Med., P.C. v Motor Vehicle Acc. Indem. Corp., 81 A.D.3d 223, 230 [2d Dept 2011]; CPLR 3212 [b]). Once the movant has met its initial burden, summary judgment will only be granted if the opposition fails to establish the existence of questions of fact (see Jacobsen v New York City Health & Hosps. Corp., 22 N.Y.3d 824, 833 [2014] [internal citation omitted]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat a motion for summary judgment (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). "A defendant moving for summary judgment in an action predicated upon the presence of snow or ice has the burden of establishing, prima facie, that it neither created the snow and ice condition that allegedly caused the plaintiff's accident] nor had actual or constructive notice of that condition" (Talamas v Metro. Transp. Auth., 120 A.D.3d 1333, 1334 [2d Dept 2014]; DeVivo v Sparago, 287 A.D.2d 535, 535 [2d Dept 2001]).
With respect to dismissal of Plaintiffs complaint, the Fulton/Wharton Defendants' argument in their moving papers rests entirely on their claim of speculation. The Fulton/Wharton Defendants did not address the issues of actual or constructive notice, or lack thereof, until their reply papers (see Dannasch v Bifulco, 184 A.D.2d 415, 417 [1st Dept 1992] ["The function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds for the motion"]) and they did not proffer any evidence or argument that they did not create the condition at any point. Accordingly, the Court finds that the Fulton/Wharton Defendants failed to meet their prima facie burden, warranting dismissal of Plaintiff s complaint, and upon such failure, the burden did not shift to Plaintiff to raise a triable issue of fact (Bosman v Reckson FS Ltd. P'ship, 15 A.D.3d 517 [2d Dept 2005]). Even assuming arguendo that Plaintiff cannot identify the exact cause of her accident, the Fulton/Wharton Defendants still would not be entitled to summary judgment (see McGrew v V.V. Bldg. Corp., 306 A.D.2d 131, 132 [1st Dept 2003], citing Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] [rejecting "defendant's argument that it is entitled to summary judgment because of plaintiffs failure to specify the particular defect in the awning or sign that caused the wooden board to fall"]).
The Fulton/Wharton Defendants essentially acknowledge the same (id. at ¶ 4 ["This motion for summary judgment rests heavily on the fact that the plaintiff has never identified the cause of the incident"]).
Since Plaintiff has conceded that New Cingular did not have actual notice, the Court will now only address whether New Cingular has made a prima facie showing that they neither created nor had constructive notice of the ice condition that allegedly caused Plaintiffs injury. In support of its contention that it did not create the condition, New Cingular cites to its expert Mr. Schwalje's report and affidavit in which he states that there could not have been any significant accumulation of snow or ice on top of the awning. Mr. Schwalje bases his conclusion on his review of photographs taken on the date of the accident and his site inspection more than three years after. This is insufficient (Figueroa v Haven Plaza Hous. Dev. Fund Co., 247 A.D.2d 210, 210 [1st Dept 1998] [finding that the Court properly disregarded portions of expert's opinion concerning observations of walkway two years after the accident when expert never compared his observations to the photographs taken days after the accident). The Court finds Mr. Schwalje's conclusion that the awning on the date of the accident is "similar in design, construction and position" as the awning on the date of the inspection conclusory and without any evidentiary support (see Rui-Jiao Liu v City of White Plains, 95 A.D.3d 1192, 1194 [2d Dept 2012]). Moreover, though Mr. Schwalje opined that the awning did not violate any industry codes or standards, he failed to cite to the applicable sections (see Preston v Peter Luger Enterprises, Inc., 51 A.D.3d 1322, 1325 [3d Dept 2008]; Suarez v D & C Mgmt. Assocs. Inc., 284 A.D.2d 706, 707 [3d Dept 2001]; Kampff v Ulster Sanitation Inc., 280 A.D.2d 797, 797 [3d Dept 2001]). Accordingly, Mr. Schwalje's statements lack probative value and New Cingular failed to establish as a matter of law that it did not create the alleged condition.
It is well-settled that constructive notice is established if the defect (1) is visible and apparent and (2) existed for a sufficient length of time before the accident to allow the defendant to discover and remedy it (Gordon v Am. Museum of Nat. Hist., 67 N.Y.2d 836, 837 [1986]). In support of their argument that it lacked constructive notice, New Cingular relies on Mr. Munoz's testimony that he inspected the outside and did not observe snow or ice shortly before the accident. New Cingular further argues that there is no evidence how long the ice condition existed before the accident. The Court finds any argument as to the length of time the ice existed unavailing. Both Plaintiff and Mr. Munoz testified that it had snowed days prior to Plaintiff s accident and a work order for snow removal was created on March 14, 2017. There is no cognizable argument made as to the ice not being the result of that snowstorm (Simmons v Metro. Life Ins. Co., 84 N.Y.2d 972, 972-74 [1994]), and even if such argument was proffered it would be negated by Mr. Munoz's testimony that it was the only time it snowed while he was working at that location. However, the standard is not just whether the condition existed for a sufficient amount of time prior to the accident, but also whether it was visible and apparent. Here, Plaintiff and Mr. Munoz testified that they had not observed any ice prior to the accident, indicating that the ice was not visible and apparent (see Nass v City of New York, 210 A.D.3d 684, 686 [2d Dept 2022] [plaintiffs failure to see patch of ice until after his slip and fall "indicates that the patch of ice was not sufficiently visible and apparent to provide the defendant with constructive notice of its existence"]). Accordingly, New Cingular met its initial burden of establishing that it lacked constructive notice (see Spinoccia v Fairfield Bellmore Ave., LLC, 95 A.D.3d 993, 994 [2d Dept 2012] [no proof of actual or constructive notice, in part, where plaintiff and defendant's representative testified that they did not see patch of ice at any time prior to accident]). The Court finds that Plaintiffs opposition failed to raise an issue of fact as to whether the ice was visible and apparent.
"[I]t was February [when] I got in there. By around June I was already out. So if my memory serves me correctly, that was the only time that it had snowed during that time that I was there" (NYSCEF Doc No. 74, Munoz tr 50:24-51:3).
Thus, as to the defendants' motions for summary judgment seeking dismissal of Plaintiff's complaint, the Court finds that the Fulton/Wharton Defendants failed to meet their prima facie burden in its entirety and there are issues of fact as to whether New Cingular caused or created the condition.
The Court now turns to the portion of defendants' motion seeking dismissal of crossclaims. With respect to contractual indemnification, it is undisputed that the lease was between AT&T Wireless Services, Inc. and 476 Fulton Street LLC. Where an entity is not a party to a contract, there can be no basis for contractual indemnification as against that non-party (Vasquez v Kennedy, ___ N.Y.S.3d ___, 2023 NY Slip Op 06074 [2d Dept 2023]; Gurewitz v City of New York, 175 A.D.3d 658, 662 [2d Dept 2019]; Northland Assocs., Inc. v Joseph Baldwin Const. Co., 6 A.D.3d 1214, 1215 [4th Dept 2004]). The Court finds that no named defendant can invoke the lease to establish entitlement to contractual indemnification. Accordingly, defendants' crossclaims for contractual indemnification are dismissed. To be entitled to common law indemnification, the party seeking indemnification must not only establish the proposed indemnitor's negligence, but also its own freedom from any negligence (Mikelatos v Theofilaktidis, 105 A.D.3d 822, 824-25 [2d Dept 2013]). The same standard applies for common law contribution (Duncan v 112 Atl. Realty, LLC, 163 A.D.3d 769, 770 [2d Dept 2018]). Since the defendants have not established the absence of negligence on their part, their request for dismissal of cross-claims for common law contribution and indemnification are denied.
Accordingly, it is hereby
ORDERED, that New Cingular's motion (Mot. Seq. No. 3) is granted only to the extent that the Fulton/Wharton Defendants' cross-claim for contractual indemnification is dismissed; and it is further
ORDERED, that the Fulton/Wharton Defendants' motion (Mot. Seq. No. 4) is granted only to the extent that New Cingular's cross-claim for contractual indemnification is dismissed.
All other issues not addressed herein are without merit or moot.
This constitutes the decision and order of the Court.