Dollard v. WB/Stellar Ip Owner, LLC

• Decision Date: 14 June 2012
• Citation: 96 A.D.3d 533,948 N.Y.S.2d 243,2012 N.Y. Slip Op. 04825
• Court: New York Supreme Court — Appellate Division
• Parties: Rose Welsh DOLLARD, Plaintiff, v. WB/STELLAR IP OWNER, LLC, et al., Defendants. [And A Third Party Action] WB/Stellar IP Owner, LLC, Second Third–Party Plaintiff–Respondent, v. New York City Economic Development Corporation, Second Third–Party Defendant, Friends of Greenwich Street, Inc., Second Third–Party Defendant–Appellant.

96 A.D.3d 533

948 N.Y.S.2d 243

2012 N.Y. Slip Op. 04825

Rose Welsh DOLLARD, Plaintiff,

v.WB/STELLAR IP OWNER, LLC, et al., Defendants.

[And A Third Party Action]

WB/Stellar IP Owner, LLC, Second Third–Party Plaintiff–Respondent,

v.New York City Economic Development Corporation, Second Third–Party Defendant,Friends of Greenwich Street, Inc., Second Third–Party Defendant–Appellant.

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

June 14, 2012.

Willkie Farr & Gallagher LLP, New York (Dan C. Kozusko of counsel), for appellant.

Brill & Associates, P.C., New York (Corey M. Reichardt of counsel), for respondent.

ANDRIAS, J.P., FRIEDMAN, SWEENY, MANZANET–DANIELS, ROMÁN, JJ.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered November 4, 2011, which denied the motion of second third-party defendant Friends of Greenwich Street, Inc. (Friends) to dismiss the second third-party complaint as against it, unanimously affirmed, without costs.

Plaintiff was injured when she allegedly tripped and fell on a cracked and uneven portion of the sidewalk that abutted a building owned by defendant/second third-party plaintiff WB/Stellar IP Owner, LLC (Stellar). Stellar commenced this second third-party action against, inter alia, Friends and asserted claims for contribution and common-law indemnification.

“In assessing a motion under CPLR 3211(a)(7) ... a court may freely consider affidavits submitted by the [non-moving party] to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one” (Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] [internal quotation marks and citations omitted] ). Here, the court properly concluded that the pleadings together with the affidavit from Stellar's property manager sufficiently alleged claims for contribution and common-law indemnificationagainst Friends. Stellar and its property manager stated that Friends installed, inspected and maintained the portion of the sidewalk on which plaintiff fell and that it did so in a negligent manner ( see generally Raquet v. Braun, 90 N.Y.2d 177, 182–183, 659 N.Y.S.2d 237, 681 N.E.2d 404 [1997];see Velez v. 19–27 Orchard St. LLC, 70 A.D.3d 488, 895 N.Y.S.2d 56 [2010];Peretich v. City of New York, 263 A.D.2d 410, 411, 693 N.Y.S.2d 576 [1999] ).