DeCourcey v. Briarcliff Congregational Church
| Decision Date | 20 March 2013 |
| Citation | 2013 N.Y. Slip Op. 01799,104 A.D.3d 799,961 N.Y.S.2d 487 |
| Parties | Bridget DeCOURCEY, et al., respondents, v. BRIARCLIFF CONGREGATIONAL CHURCH, et al., appellants. (Action No. 1). Bridget DeCourcey, respondent, v. Christian Nursery School, Inc., respondent-appellant. (Action No. 2). |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Harrington, Ocko & Monk, LLP, White Plains, N.Y. (Julie C. Hellberg of counsel), for appellant Briarcliff Congregational Church.
Miranda Sambursky Slone Sklarin Verveniotis, LLP, Elmsford, N.Y. (Richard Sklarin and Michael Neri of counsel), for appellant Joanne T. Borchers, doing business as Christian Nursery School and respondent-appellant.
Lawrence J. Glynn, White Plains, N.Y., for respondents.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and SHERI S. ROMAN, JJ.
In two related actions to recover damages for personal injuries, etc., (1) Briarcliff Congregational Church appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Loehr, J.), entered June 8, 2011, as denied those branches of its motion which were for summary judgment dismissing the complaint in Action No. 1 insofar as asserted against it, and for summary judgment on its claim for contractual indemnification against the defendant Christian Nursery School, Inc., and, in effect, granted that branch of the motion of the defendants Joanne T. Borchers, doing business as Christian Nursery School, and Christian Nursery School, Inc., which was for summary judgment dismissing the claim of Briarcliff Congregational Church for contractual indemnification against the defendant Christian Nursery School, Inc., and (2) Christian Nursery School, Inc., cross-appeals, as limited by its brief, from so much of the same order as denied that branch of its cross motion, made jointly with the defendant Joanne T. Borchers, doing business as Christian Nursery School, which was for summary judgment dismissing the complaint in Action No. 2.
ORDERED that one bill of costs is awarded to Briarcliff Congregational Church payable by the plaintiffs and Christian Nursery School, Inc., and one bill of costs is awarded to Christian Nursery School, Inc., payable by the plaintiffs.
The plaintiff Bridget DeCourcey (hereinafter the injured plaintiff) was injured when she fell on a stairway located on property owned by the defendant Briarcliff Congregational Church (hereinafter the Church), while she was trying to get to a part of the Church's property that had been leased to the defendant Christian Nursery School, Inc. (hereinafter the Nursery School). The injured plaintiff, and her husband suing derivatively, commenced Action No. 1 against the Church and Joanne T. Borchers, doing business as Christian Nursery School. Upon ascertaining that the Nursery School, not Borchers, leased the subject premises, the injured plaintiff commenced a second action solely against the Nursery School. The Church moved for summary judgment dismissing the complaint in Action No. 1 insofar as asserted against it, and on its claim for contractual indemnification against the Nursery School. Borchers and the Nursery School cross-moved for summary judgment dismissing both complaints insofar as asserted against each of them and the Church's claims for contractual indemnification. The Supreme Court denied the motion and that branch of the cross motion which was to dismiss the complaint in Action No. 2, granted that branch of the cross motion which was to dismiss the complaint in Action No. 1 and the Church's claims for contractual indemnification insofar as asserted against Borchers, and, in effect, granted that branch of the cross motion which was to dismiss the Church's claims for contractual indemnification insofar as asserted against the Nursery School.
The Supreme Court should have granted that branch of the Church's motion which was for summary judgment dismissing the complaint in Action No. 1 insofar as asserted against it. Contrary to the Supreme Court's determination, the Church established its prima facie entitlement to judgment as a matter of law by demonstrating that various provisions of the New York State Building and Construction Code and the New York State Uniform Fire Prevention and Building Code upon which the plaintiff relied were inapplicable, that the subject stairway and door complied with all applicable code provisions, and that the subject stairway was not defective. In opposition, the plaintiffs failed to raise a triable issue of fact ( see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). They failed to demonstrate that the various code provisions upon which they relied were in effect at the time the subject...
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