Bermingham v. Peter

• Decision Date: 20 April 2012
• Citation: 94 A.D.3d 1424,2012 N.Y. Slip Op. 02984,942 N.Y.S.2d 296
• Parties: Heather L. BERMINGHAM, Plaintiff, v. The PETER, SR. & MARY L. LIBERATORE FAMILY LIMITED PARTNERSHIP, doing business as Lincoln Square Apartments, Defendant.The Peter, Sr. & Mary L. Liberatore Family Limited Partnership, doing business as Lincoln Square Apartments, Third–Party Plaintiff–Respondent, v. Geary S. Kopp, Doing Business as S & K Landscaping, Third–Party Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02984

94 A.D.3d 1424

942 N.Y.S.2d 296

Heather L. BERMINGHAM, Plaintiff,

v.The PETER, SR. & MARY L. LIBERATORE FAMILY LIMITED PARTNERSHIP, doing business as Lincoln Square Apartments, Defendant.The Peter, Sr. & Mary L. Liberatore Family Limited Partnership, doing business as Lincoln Square Apartments, Third–Party Plaintiff–Respondent,

v.Geary S. Kopp, Doing Business as S & K Landscaping, Third–Party Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

April 20, 2012.

Kenney Shelton Liptak Nowak LLP, Buffalo (Amanda L. Machacek of Counsel), for Third–Party Defendant–Appellant.

Cohen & Lombardo, P.C., Buffalo (James J. Nash of Counsel), for Third–Party Plaintiff–Respondent.

PRESENT: SMITH, J.P., LINDLEY, SCONIERS, AND MARTOCHE, JJ.

MEMORANDUM:

Plaintiff commenced this action seeking damages for injuries she sustained when she allegedly slipped and fell on black ice in a parking lot owned by defendant-third-party plaintiff (defendant). Defendant commenced the third-party action, asserting claims for, inter alia, common-law indemnification and contribution. Supreme Court denied defendant's motion seeking a conditional order of common-law indemnification against third-party defendant, its snow removal contractor, and denied third-party defendant's cross motion seeking summary judgment dismissing the third-party complaint. The third-party action was severed from the main action and, following the trial of the main action, third-party defendant moved for leave to renew his cross motion. Although the court purportedly denied the motion for leave to renew, it is apparent from the decision that the court actually granted the motion and, upon renewal, adhered to its original decision.

We conclude that the court, upon renewal, properly refused to dismiss the common-law indemnification claim. Even assuming, arguendo, that third-party defendant requested such relief in his cross motion and thus that the issue is properly before us ( cf. Oneida Indian Nation v. Hunt Constr. Group, Inc., 88 A.D.3d 1264, 1266, 930 N.Y.S.2d 729), we conclude that he failed to meet his initial burden of establishing that plaintiff's accident was not attributable to his negligent performance or nonperformance of an act solely within his province under the contract with defendant ( see Abramowitz v. Home Depot USA, Inc., 79 A.D.3d 675, 677, 912 N.Y.S.2d 639; Trzaska v. Allied Frozen Stor., Inc., 77 A.D.3d 1291, 1293, 909 N.Y.S.2d 260). Contrary to third-party defendant's contention, we further conclude that neither the testimony at the trial of the main action nor the jury verdict following that trial establishes that defendant's liability was other than vicarious, i.e., that defendant was actively negligent ( see generally Eastman v. Volpi Mfg. USA, Co., 229 A.D.2d 913, 913, 645 N.Y.S.2d 214).

The court erred upon renewal, however, in denying that part of third-party defendant's cross motion seeking summary judgment dismissing the contribution...