Bogdanova v. Falcon Meat Mkt.

• Decision Date: 27 June 2013
• Citation: 107 A.D.3d 638,2013 N.Y. Slip Op. 04902,969 N.Y.S.2d 16
• Parties: Sofia BOGDANOVA, Plaintiff–Respondent, v. FALCON MEAT MARKET, et al., Defendants–Respondents–Appellants, 188 St. Nicholas Associates, LLC, et al., Defendants, Margis Realty Company, LLC, et al., Defendants–Appellants–Respondents.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 638

969 N.Y.S.2d 16

2013 N.Y. Slip Op. 04902

Sofia BOGDANOVA, Plaintiff–Respondent,

v. FALCON MEAT MARKET, et al., Defendants–Respondents–Appellants,188 St. Nicholas Associates, LLC, et al., Defendants,Margis Realty Company, LLC, et al., Defendants–Appellants–Respondents.

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

June 27, 2013.

Newman Myers Kreines Gross Harris, P.C., New York (Olivia M. Gross and Patrick M. Caruana of counsel), for appellants-respondents.

Kim Patterson & Sciarrino, L.L.P., Bayside (Stephen E. Kwan of counsel), for respondents-appellants.

Vouté, Lohrfink, Magro & McAndrew, LLP, White Plains (Laura K. Silverstein of counsel), for respondent.

TOM, J.P., MAZZARELLI, MOSKOWITZ, GISCHE, JJ.

Order, Supreme Court, New York County (Anil C. Singh, J.), entered August 13, 2012, which, to the extent appealed from, denied defendants Margis Realty Company, LLC and Milbrook Properties, Ltd.'s motion for summary judgment dismissing the complaint as against Margis and on their cross claim against defendants Falcon Meat Market and Falcon Meat Market, Inc. (together, Falcon) for contractual indemnification, denied Falcon's motion for summary judgment dismissing the complaint as against it, and granted plaintiff's motion for summary judgment on the issue of liability as against Margis and Falcon, unanimously modified, on the law, to grant Margis's motion for conditional summary judgment on its contractual indemnification claim against Falcon, and to deny plaintiff's motion, and otherwise affirmed, without costs.

Plaintiff slipped and fell on snow and ice on the sidewalk allegedly in front of a building owned by Margis and managed by Milbrook in which Falcon leases premises for its store. Pursuant to its lease agreement, Falcon agreed to provide public liability insurance naming Margis as an additional insured party and to indemnify Margis from all claims, losses, actions, costs and expenses, including, without limitation, reasonable attorneys' fees.

Margis and Falcon established prima facie that they had no obligation to remove the snow from the sidewalk in front of Margis's building until 11 a.m. (nearly three hours after plaintiff's accident occurred) because it had snowed the night before ( see Administrative Code of City of N.Y. § 16–123[a]; Rodriguez v. New York City Hous. Auth., 52 A.D.3d 299, 859 N.Y.S.2d 186 [1st Dept. 2008] ). However, plaintiff submitted a meteorologist's affidavit, together with certified meteorological records, indicating that 10 inches of snow had fallen two days before her accident, thereby raising an issue of fact whether Margis and Falcon had failed to clear the snow that fell days before her accident, not the night before.

Pla...