Konsky v. Escada Hair Salon, Inc.

• Decision Date: 15 January 2014
• Citation: 113 A.D.3d 656,2014 N.Y. Slip Op. 00207,978 N.Y.S.2d 342
• Parties: Maya KONSKY, et al., plaintiffs, v. ESCADA HAIR SALON, INC., defendant third-party plaintiff-respondent; Brighton Realty Co., third-party defendant/second third-party plaintiff-appellant; Yuksel Ozuyman, second third-party defendant-respondent.
• Court: New York Supreme Court — Appellate Division

113 A.D.3d 656
978 N.Y.S.2d 342
2014 N.Y. Slip Op. 00207

Maya KONSKY, et al., plaintiffs,
v.
ESCADA HAIR SALON, INC., defendant third-party plaintiff-respondent;
Brighton Realty Co., third-party defendant/second third-party plaintiff-appellant;
Yuksel Ozuyman, second third-party defendant-respondent.

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

Jan. 15, 2014.

[978 N.Y.S.2d 343]

Gannon, Rosenfarb, Balletti & Drossman, New York, N.Y. (Lisa L. Gokhulsingh of counsel), for third-party defendant/second third-party plaintiff-appellant.

Cullen and Dykman LLP, New York, N.Y. (Diana Neyman of counsel), for defendant third-party plaintiff-respondent and second third-party defendant-respondent.

PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and SANDRA L. SGROI, JJ.

In an action to recover damages for personal injuries, etc., the third-party defendant/second third-party plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated June 20, 2012, as denied those branches of its motion which were, in effect, for summary judgment dismissing the third-party complaint and for summary judgment on its third counterclaim and on its second third-party cause of action for contractual indemnification.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was for summary judgment dismissing the cause of action for common-law indemnification in the third-party complaint and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

On November 20, 2007, the plaintiff Maya Konsky (hereinafter the injured plaintiff), a customer of the defendant Escada Hair Salon, Inc. (hereinafter Escada), allegedly was injured when she fell from a 7 1/2-inch-high platform in the salon as she attempted to hang her coat on a coat rack located adjacent to the edge of the platform. At her deposition, the injured plaintiff testified that she did not see the end of the platform. The owner of the salon, the second third-party defendant, Yuksel Ozuyman, leased the premises from the third-party defendant/second third-party plaintiff, Brighton Realty Co. (hereinafter Brighton Realty). The injured plaintiff, and her husband suing derivatively, commenced this action against Escada to recover damages for, inter alia, personal injuries,

[978 N.Y.S.2d 344]

alleging that Escada was negligent in situating a coat rack adjacent to a platform. Escada commenced a third-party action against Brighton Realty, asserting causes of action for common-law indemnification and contribution, and to recover damages for breach of contract and negligence in the performance of repairs, maintenance, operation, and supervision of the premises. Brighton Realty then commenced a second third-party action against Ozuyman, asserting causes of action for common-law contribution, contractual indemnification, common-law indemnification, and to recover damages for breach of a contract to procure insurance and failure to provide a defense.

The Supreme Court should have granted that branch of Brighton Realty's motion which was for summary judgment dismissing the cause of action for...