Kielty v. Ajs Constr. of L.I. Inc.

• Decision Date: 26 April 2011
• Citation: 2011 N.Y. Slip Op. 03551,83 A.D.3d 1004,922 N.Y.S.2d 467
• Court: New York Supreme Court — Appellate Division
• Parties: Keri KIELTY, plaintiff,v.AJS CONSTRUCTION OF L.I., INC., defendants third-party plaintiffs-appellants,N.Y. Construction & Paving, Inc., defendant third-party defendant-respondent-appellant,MRP Family Holdings, LLC, defendant-respondent, et al., defendant.

83 A.D.3d 1004

922 N.Y.S.2d 467

2011 N.Y. Slip Op. 03551

Keri KIELTY, plaintiff,

v.AJS CONSTRUCTION OF L.I., INC., defendants third-party plaintiffs-appellants,N.Y. Construction & Paving, Inc., defendant third-party defendant-respondent-appellant,MRP Family Holdings, LLC, defendant-respondent, et al., defendant.

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

April 26, 2011.

Milber Makris Plousadis & Seiden, LLP, White Plains, N.Y. (David C. Zegarelli of counsel), for defendants third-party plaintiffs-appellants.Russo, Keane & Toner, LLP, New York, N.Y. (Thomas F. Keane of counsel), for defendant third-party defendant-respondent-appellant.Cohen, Kuhn & Associates, New York, N.Y. (James V. Sawicki and Thomas Herbertson of counsel), for defendant-respondent.PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

In an action to recover damages for personal injuries, the defendants third-party plaintiffs, AJS Construction of L.I., Inc., and AJS Construction & Project Management, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Maltese, J.), dated March 19, 2010, as granted that branch of the motion of the defendant MRP Family Holdings, LLC, which was for summary judgment on its cross claims against them for common-law and contractual indemnification, and denied their motion for summary judgment on their third-party cause of action for common-law indemnification against the defendant third-party defendant, N.Y. Construction & Paving, Inc., and the defendant third-party defendant, N.Y. Construction & Paving, Inc., separately appeals, as limited by its notice of appeal and brief, from so much of the same order as granted that branch of the motion of the defendant MRP Family Holdings, LLC, which was for summary judgment on that defendant's cross claim against it for common-law indemnification.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the motion of the defendant MRP Family Holdings, LLC, which was for summary judgment on its cross claim against the defendants third-party plaintiffs, AJS Construction of L.I., Inc., and AJS Construction & Project Management, Inc., for common-law and contractual indemnification, and substituting therefor a provision denying that branch of the motion, and (2) by deleting the provision thereof granting that branch of the motion of the defendant MRP Family Holdings, LLC, which was for summary judgment on its cross claim against the defendant third-party defendant, N.Y. Construction & Paving, Inc., for common-law indemnification, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the defendant third-party defendant, N.Y. Construction & Paving, Inc., payable by the defendants third-party plaintiffs, AJS Construction of L.I., Inc., and AJS Construction & Project Management, Inc., and one bill of costs to the defendants third-party plaintiffs, AJS Construction of L.I., Inc., and AJS Construction & Project Management, Inc., payable by the defendant MRP Family Holdings, LLC.

The Supreme Court should have denied those branches of the motion of the defendant MRP Family Holdings, LLC (hereinafter MRP), which were for summary judgment on its cross claims against the defendant third-party defendant, N.Y. Construction & Paving, Inc. (hereinafter together N.Y. Construction), for common-law indemnification, and against the defendants third-party plaintiffs AJS Construction of L.I., Inc., and AJS Construction & Project Management, Inc. (hereinafter AJS), for common-law and contractual indemnification. To be entitled to common-law indemnification, MRP was required to show that it was not negligent and that the parties from which it sought indemnification were negligent in connection with the plaintiff's accident ( see George v. Marshalls of MA, Inc., 61 A.D.3d 925, 929–930, 878 N.Y.S.2d 143) or, in the absence of any negligence by those parties, that those parties had the authority to direct, supervise, and control the work giving rise to the injury ( see Benedetto v. Carrera Realty Corp., 32 A.D.3d 874, 875, 822 N.Y.S.2d 542). MRP had to show that it neither created the dangerous condition nor had actual or constructive notice of the dangerous condition ( see Bolloli v. Waldbaum, Inc., 71 A.D.3d 618, 619, 896 N.Y.S.2d 400; Battaglia v. Toys R Us, 271 A.D.2d 627, 629, 706 N.Y.S.2d 468; see also Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837–838, 501 N.Y.S.2d 646, 492 N.E.2d 774). Moreover, an award of summary judgment on a cause of action for common-law indemnification is appropriate only where there are no triable issues of fact concerning the degree of fault attributable to the parties ( see Aragundi v. Tishman Realty & Constr. Co., Inc., 68 A.D.3d 1027, 1030, 891 N.Y.S.2d 462; Coque v. Wildflower Estates Developers, Inc., 31 A.D.3d 484, 489, 818 N.Y.S.2d 546).

MRP, as the owner of the parking lot in which the plaintiff fell, had the initial burden of showing that it neither created nor had actual or constructive notice of the allegedly defective condition that caused the accident ( see Van Dina v. St. Francis Hosp., Roslyn, N.Y., 45 A.D.3d 673, 845 N.Y.S.2d 430; Miguel v. SJS Assoc., LLC, 40 A.D.3d 942, 837 N.Y.S.2d 193; Riley v. ISS...