Espinoza v. Federated Dept. Stores, Inc.

CourtNew York Supreme Court Appellate Division
Writing for the CourtSAXE
Citation73 A.D.3d 599,904 N.Y.S.2d 3
Decision Date20 May 2010
PartiesSandra ESPINOZA, etc., et al., Plaintiffs-Respondents, v. FEDERATED DEPARTMENT STORES, INC., et al., Defendants-Respondents, Mainco Services Company, et al., Defendants-Appellants.
904 N.Y.S.2d 3
73 A.D.3d 599


Sandra ESPINOZA, etc., et al., Plaintiffs-Respondents,
v.
FEDERATED DEPARTMENT STORES, INC., et al., Defendants-Respondents,
Mainco Services Company, et al., Defendants-Appellants.


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

May 20, 2010.

904 N.Y.S.2d 3

Babchik & Young, LLP, White Plains (Matthew J. Rosen of counsel), for appellants.

Alexander J. Wulwick, New York, for Espinoza respondents.

Lester Schwab Katz & Dwyer, LLP, New York (Howard R. Cohen of counsel), for Federated Department Stores, Inc. and Macy's East, Inc., respondents.

SAXE, J.P., CATTERSON, RICHTER, ABDUS-SALAAM, JJ.

73 A.D.3d 599

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered September

30, 2009, which denied the Mainco defendants' motion for summary judgment dismissing the complaint as against them and on their claims for contractual and common-law indemnification against defendants Federated Department Stores, Inc. and Macy's East, Inc. (Macy's), unanimously modified, on the law, to grant the part of the motion that sought summary judgment dismissing the complaint, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing the complaint as against the Mainco defendants and to sever said defendants' cross claims against Macy's.

The infant plaintiff was injured when he tripped at the top of an escalator in a Macy's store and his arm got caught between

the handrail and the handrail return guard. The Mainco defendants established prima facie that, even assuming a missing or defective handrail return guard, they were not negligent, because they did not create the condition, they had received no previous complaints about such a condition, and the records of the regular monthly preventive maintenance they performed three weeks before the accident indicated no problems ( see Parris v. Port of N.Y. Auth., 47 A.D.3d 460, 850 N.Y.S.2d 53 [2008] ). The affidavits submitted by plaintiffs and Macy's in opposition, in which elevator experts stated that the handrail return guard was either missing or defective and opined that Mainco had been negligent in failing to observe that it was missing or in failing to correct the defect, were insufficient to raise an issue of fact because the experts' opinions were unsupported by any evidentiary foundation ( see Gjonaj v. Otis El. Co., 38 A.D.3d 384, 832 N.Y.S.2d 189 [2007] ).

Since there has been no finding that negligence on Macy's...

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12 practice notes
  • Tuchman v. Deam Props. (Us), LLC, Index No. 101056/2010
    • United States
    • United States State Supreme Court (New York)
    • 25 Abril 2014
    ...524 (1st Dep't 2013); Lopez v. New York Life Ins. Co., 90 A.D.3d 446, 447 (1st Dep't 2011); Espinoza v. Federated Dept. Stores, Inc., 73 A.D.3d 599, 600 (1st Dep't 2010); Mastroddi v. WDG Dutchess Assoc. Ltd. Partnership, 52 A.D.3d 341, 342 (1st Dep't 2008). See Fernandez v. 707, Inc., 85 A......
  • Luna v. Am. Airlines, No. 04 Civ. 1803(MHD).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 6 Enero 2011
    ...or settlement—of fault by a purported indemnitor, indemnification is not permitted. See, e.g., Espinoza v. Federated Dep't Stores, Inc., 73 A.D.3d 599, 600, 904 N.Y.S.2d 3, 4 (1st Dep't 2010) (“Since there has been no finding that negligence ... was a cause of the ... plaintiff's injuries, ......
  • Luna v. Broadcom W. Dev. Co., 101340/2015
    • United States
    • United States State Supreme Court (New York)
    • 10 Diciembre 2020
    ...Colon v. 385 Fifth Ave., LLC , 188 A.D.3d 486, 132 N.Y.S.3d 280, 280 (1st Dep't 2020) ; Espinoza v. Federated Dept. Stores, Inc. , 73 A.D.3d 599, 600, 904 N.Y.S.2d 3 (1st Dep't 2010) ; Parris v. Port of N.Y. Auth. , 47 A.D.3d 460, 461, 850 N.Y.S.2d 53 (1st Dep't 2008) ; Kleinberg v. City of......
  • Sussman v. MK LCP Rye LLC, Index No.: 156066/2014
    • United States
    • United States State Supreme Court (New York)
    • 24 Julio 2017
    ...of the condition (Sabalza v. Salgado, 85 A.D.3d 436, 924 N.Y.S.2d 373, 375 [1st Dept 2011]; Espinoza v. Federated Dep't Stores, Inc., 73 A.D.3d 599, 600, 904 N.Y.S.2d 3, 4 [1st Dept 2010]). "It is well settled that a defendant is entitled to summary judgment as a matter of law when a plaint......
  • Request a trial to view additional results
12 cases
  • Tuchman v. Deam Props. (Us), LLC, Index No. 101056/2010
    • United States
    • United States State Supreme Court (New York)
    • 25 Abril 2014
    ...524 (1st Dep't 2013); Lopez v. New York Life Ins. Co., 90 A.D.3d 446, 447 (1st Dep't 2011); Espinoza v. Federated Dept. Stores, Inc., 73 A.D.3d 599, 600 (1st Dep't 2010); Mastroddi v. WDG Dutchess Assoc. Ltd. Partnership, 52 A.D.3d 341, 342 (1st Dep't 2008). See Fernandez v. 707, Inc., 85 A......
  • Luna v. Am. Airlines, No. 04 Civ. 1803(MHD).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 6 Enero 2011
    ...or settlement—of fault by a purported indemnitor, indemnification is not permitted. See, e.g., Espinoza v. Federated Dep't Stores, Inc., 73 A.D.3d 599, 600, 904 N.Y.S.2d 3, 4 (1st Dep't 2010) (“Since there has been no finding that negligence ... was a cause of the ... plaintiff's injuries, ......
  • Luna v. Broadcom W. Dev. Co., 101340/2015
    • United States
    • United States State Supreme Court (New York)
    • 10 Diciembre 2020
    ...Colon v. 385 Fifth Ave., LLC , 188 A.D.3d 486, 132 N.Y.S.3d 280, 280 (1st Dep't 2020) ; Espinoza v. Federated Dept. Stores, Inc. , 73 A.D.3d 599, 600, 904 N.Y.S.2d 3 (1st Dep't 2010) ; Parris v. Port of N.Y. Auth. , 47 A.D.3d 460, 461, 850 N.Y.S.2d 53 (1st Dep't 2008) ; Kleinberg v. City of......
  • Sussman v. MK LCP Rye LLC, Index No.: 156066/2014
    • United States
    • United States State Supreme Court (New York)
    • 24 Julio 2017
    ...of the condition (Sabalza v. Salgado, 85 A.D.3d 436, 924 N.Y.S.2d 373, 375 [1st Dept 2011]; Espinoza v. Federated Dep't Stores, Inc., 73 A.D.3d 599, 600, 904 N.Y.S.2d 3, 4 [1st Dept 2010]). "It is well settled that a defendant is entitled to summary judgment as a matter of law when a plaint......
  • Request a trial to view additional results

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