Concepcion v. Harlorn, LLC.
| Decision Date | 15 December 2014 |
| Docket Number | Index No.: 303700/10 |
| Citation | 2014 NY Slip Op 33420 (U) |
| Court | New York Supreme Court |
| Parties | PEDRO CONCEPCION, Plaintiff, v. HARLORN, LLC. and WESTERN BEEF PROPERTIES, INC., Defendants. HARLORN LLC, Third-Party Plaintiff, v. ISIDORO GONCALVES d/b/a KEEP IZZY BUSY and ISIDORO GONCALVES, individually, Third-Party Defendants. |
Present: Hon. Mary Ann Brigantti
DECISION/ORDER
The following papers numbered 1 to 6 read on the below motion noticed on September 19, 2014 and duly submitted on the Part IA15 Motion calendar of October 10, 2014:
Papers Submitted
Numbered
Izzy's Affirmation in support of motion, exhibits
1,2
Western Beef's Aff. In Opp., exhibits
3,4
Harlorn's Aff. in Opp.
5
Izzy's Aff. In Reply
6
Upon the foregoing papers, third-party defendants Isidoro Goncalves d/b/a Keep Izzy Busy and Isidoro Goncalves, Individually (collectively, "Izzy") move for summary judgment, dismissing the third-party complaint of the defendant/third-party plaintiff Harlorn, LLC("Harlorn"). The motion is opposed by Harlorn and its co-defendant in the main action, Western Beef Properties, Inc. ("Western Beef").
This matter arises out of an alleged trip and fall accident that occurred on November 17, 2009, on a newly-constructed sidewalk located near property owned by Harlorn and occupied by Western Beef. Harlorn had hired the movant Izzy to replace a portion of a sidewalk and curb.
Izzy argues that the motion must be granted since the evidence confirms that Izzy properly installed the sidewalk, and inspections performed by Corey Shanus of Harlorn and John Fraschilla of Western Beef found no defective condition when the work was completed, a day before this accident. Representatives from Harlorn executed a "release" after inspecting the sidewalk, indicating that the work was performed in a satisfactory manner.
In opposition to the motion, Harlorn argues that Izzy has not satisfied its initial burden, as they have not provided expert testimony indicating that the sidewalk was properly installed. The inspections performed by lay-persons were insufficient to carry their initial burden. Harlorn also argues that the very fact that the sidewalk developed a defect one day after it was built is fatal to this application. Moreover, there was language in the parties' agreement indicating that Izzy would remain liable for any defective work, and therefore dismissal of Harlorn's contractual indemnification claim is not warranted. Defendant Western Beef also opposes the motion, arguing that there is conflicting testimony as to whether a proper concrete inspection was conducted here. The owner of Izzy testified that concrete requires 24 hours to dry, however an inspection of the sidewalk was performed before 24 hours had elapsed.
In reply, Izzy contends inter alia that it has established prima facie entitlement to judgment as a matter of law through its owner's testimony as to how the sidewalk was installed, and that he in fact waited extra time for it to dry before allowing the other parties to perform their inspection.
To be entitled to the "drastic" remedy of summary judgment, the moving party "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case." (Winegrad v. New York University Medical Center, 64 N.Y.2d 851 [1985]; Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [1957]). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. (Id., see also Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). Facts must be viewed in the light most favorable to the non-moving party (Sosa v. 46th Street Development LLC., 101 A.D.3d 490 [1st Dept. 2012]). Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v. Restani Constr. Corp., 18 N.Y.3d 499 [2012]). If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. (Bush v. Saint Claire's Hospital, 82 N.Y.2d 738 [1993]).
Izzy contends that there was no defective condition on the sidewalk when it completed its work, the day before this accident, and argues that it properly performed the sidewalk installation. The owner of Izzy testified that he would have observed the chip as depicted in the photograph had it been present when he made his inspection. A representative from Harlorn signed a "release" indicating that the work was done in a satisfactory manner, and representatives from Harlorn and Western Beef indicate they inspected the premises and found no defect the day before the accident. According to the plaintiff Pedro Concepcion ("Plaintiff"), however, there was a missing piece of cement in the sidewalk at the time of his accident, that caused him to fall. Photographs identified by Plaintiff at his deposition depict such a condition in the sidewalk,which appears to be a chipped section of cement near the sidewalk curb, described by Mr. Shanus as a "discontinuity." There is therefore an issue of fact as to whether Izzy created this allegedly defective condition (see Villa v. Cablevision of NYC, 28 A.D.3d 248 [1st Dept. 2006]; Field v. City of New York, 302 A.D.2d 223 [1st Dept. 2003])....
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