Hartofil v. McCourt & Trudden Funeral Home Inc.

• Decision Date: 30 December 2008
• Docket Number: 2008-02143.
• Citation: 2008 NY Slip Op 10585,871 N.Y.S.2d 299,57 A.D.3d 943
• Parties: JOHN HARTOFIL, Respondent-Appellant, v. McCOURT & TRUDDEN FUNERAL HOME, INC., Respondent, INCORPORATED VILLAGE OF FARMINGDALE, Appellant-Respondent, and F.D. CONTRACTING CORP., Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

57 A.D.3d 943

871 N.Y.S.2d 299

2008 NY Slip Op 10585

JOHN HARTOFIL, Respondent-Appellant, v. McCOURT & TRUDDEN FUNERAL HOME, INC., Respondent INCORPORATED VILLAGE OF FARMINGDALE, Appellant-Respondent, and F.D. CONTRACTING CORP., Respondent-Appellant.

2008-02143.

Appellate Division of the Supreme Court of New York, Second Department.

December 30, 2008.

In an action to recover damages for personal injuries, (a) the defendant Incorporated Village of Farmingdale appeals, as limited by its brief, from so much of an order of the Supreme

Court, Nassau County (Lally, J.), dated February 7, 2008, as denied that branch of its motion which was for summary judgment dismissing the cross claim of the defendant F.D. Contracting Corp. insofar as asserted against it and granted the motion of the defendant McCourt & Trudden Funeral Home, Inc., for summary judgment dismissing the complaint insofar as asserted against it, (b) the defendant F.D. Contracting Corp. cross-appeals, as limited by its brief, from so much of the same order as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and (c) the plaintiff separately cross-appeals, as limited by his brief, from so much of the same order as granted the motion of the defendant McCourt & Trudden Funeral Home, Inc., for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the appeal by the defendant Incorporated Village of Farmingdale from so much of the order as granted the motion of the defendant McCourt & Trudden Funeral Home, Inc., for summary judgment dismissing the complaint insofar as asserted against it, is dismissed, without costs or disbursements, as it is not aggrieved thereby (see Carpenter v Murphy, 4 AD3d 318 [2004]); and it is further,

Ordered that the order is modified, on the law, (1) by deleting the provision thereof denying the motion of the defendant F.D. Contracting Corp. for summary judgment dismissing the complaint and all cross claims insofar as asserted against it and substituting therefor a provision granting that motion, and (2) by deleting the provision thereof denying that branch of the motion of the defendant Incorporated Village of Farmingdale which was for summary judgment dismissing the cross claim of the defendant F.D. Contracting Corp. and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as cross-appealed from; and it is further,

Ordered that one bill of costs is awarded to the defendants Incorporated Village of Farmingdale, F.D. Contracting Corp., and McCourt & Trudden Funeral Home, Inc., payable by the plaintiff.

On the afternoon of January 27, 2006 the plaintiff tripped and fell on a strip of brickwork located adjacent to a public sidewalk in the Incorporated Village of Farmingdale. The accident occurred in front of premises owned by the defendant McCourt & Trudden Funeral Home, Inc. (hereinafter McCourt). Although the brickwork was level with the adjacent concrete sidewalk flags, the plaintiff alleges that the bricks he tripped over had sunk, creating a height differential. The plaintiff subsequently commenced this action against the Village, the adjoining property owner, McCourt, and F.D. Contracting Corp. (hereinafter F.D. Contracting), the contractor which had installed the brickwork approximately eight years prior to the accident.

After depositions had been conducted, McCourt moved for summary judgment dismissing the complaint insofar as asserted against it and the Village and F.D. Contracting separately moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them. While the motions were pending, the plaintiff voluntarily discontinued his action against the Village. The Supreme Court granted McCourt's motion for summary judgment, concluding that it had no duty to maintain and repair the brickwork in front of its premises pursuant to the Code of the Village of Farmingdale § 81-3.1 because the brickwork was not part of the sidewalk. However, the court denied F.D. Contracting's motion, finding that...