Lopez v. New York Life Ins. Co.

CourtNew York Supreme Court Appellate Division
Writing for the CourtTOM
Citation90 A.D.3d 446,2011 N.Y. Slip Op. 08813,934 N.Y.S.2d 136
Decision Date08 December 2011
PartiesBernardo LOPEZ, Plaintiff–Respondent, v. NEW YORK LIFE INSURANCE COMPANY, et al., Defendants–Respondents–Appellants.New York Life Insurance Company, Third–Party Plaintiff–Respondent–Appellant, v. Jones Lang LaSalle Americas, Inc., Third–Party Defendant–Appellant–Respondent.

2011 N.Y. Slip Op. 08813
90 A.D.3d 446
934 N.Y.S.2d 136

Bernardo LOPEZ, Plaintiff–Respondent,
v.
NEW YORK LIFE INSURANCE COMPANY, et al., Defendants–Respondents–Appellants.New York Life Insurance Company, Third–Party Plaintiff–Respondent–Appellant,
v.
Jones Lang LaSalle Americas, Inc., Third–Party Defendant–Appellant–Respondent.

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

Dec. 8, 2011.


[934 N.Y.S.2d 137]

Hoey, King & Epstein, New York (Andrew Sfouggatakis of counsel), for New York Life Insurance Company, respondent-appellant.

Cerussi & Spring, White Plains (Kevin P. Westerman of counsel), for Collins Building Services, Inc., respondent-appellant.

McGaw, Alventusa & Zajac, Jericho (Ross Masler of counsel), for appellant-respondent.Faber & Troy, Woodbury (Salvatore V. Agosta of counsel), for respondent.TOM, J.P., SAXE, DeGRASSE, FREEDMAN, ROMÁN, JJ.

[90 A.D.3d 447] Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered June 25, 2010, which, in this personal injury action arising from a slip and fall on a puddle of water in a building owned by defendant/third-party plaintiff New York Life Insurance Company (NYL) and managed by third-party defendant Jones Lang LaSalle Americas, Inc. (JLL), to the extent appealed from as limited by the briefs, denied NYL's motion for summary judgment dismissing the complaint and all cross claims against it and for summary judgment on its claims for contractual and common-law indemnification against JLL and the maintenance contractor defendant Collins Building Services, Inc., denied Collins's motion for summary judgment dismissing the complaint and all cross claims against it, and denied JLL's motion for summary judgment dismissing the third-party complaint and for summary judgment on its counterclaim for contractual indemnification against NYL, affirmed, without costs.

Plaintiff allegedly slipped in a large puddle of water that appeared to be flowing out from under a locked men's room door in a building owned by NYL, managed by JLL, and for which Collins provided janitorial services. The evidence submitted by NYL, Collins and JLL was insufficient to establish as a matter of law that they did not have constructive notice of the hazard. In particular, they failed to provide evidence regarding the inspection procedures followed on the date of the accident or the duration and source of the hazard ( see Castillo v. New York City Tr. Auth., 69 A.D.3d 487, 891 N.Y.S.2d 645 [2010]; Roy v. City of New York, 65 A.D.3d 1030, 1031, 885 N.Y.S.2d 108 [2009] ).

Nor do the submissions of maintenance contractor Collins entitle it to summary judgment dismissing the claim against it on the ground that it owed no duty to plaintiff. A contractor may assume a duty of care toward third parties “where the contracting party, in failing to exercise reasonable care in the performance of his duties, ‘launche[s] a force or instrument of harm’ ” ( Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002], quoting Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 168, 159 N.E. 896 [1928] ). In this case, the hazard could have been created, for instance, through a failure to correct a drip into a stoppered sink or a failure to notice and report a leak. On a summary judgment motion, the burden is on the movant...

To continue reading

Request your trial
12 practice notes
  • Tuchman v. Deam Props. (Us), LLC, Index No. 101056/2010
    • United States
    • United States State Supreme Court (New York)
    • April 25, 2014
    ...that its work did not cause the leak. Corprew v. City of New York, 106 A.D.3d 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. Part......
  • Hannigan v. Staples, Inc., 521532.
    • United States
    • New York Supreme Court Appellate Division
    • March 31, 2016
    ...summary judgment for either contractual or common-law indemnification is premature (see Lopez v. New York Life Ins. Co., 90 A.D.3d 446, 448, 934 N.Y.S.2d 136 [2011] ; Mesler v. PODD LLC, 89 A.D.3d 1533, 1534–1535, 933 N.Y.S.2d 493 [2011] ; Cook v. Orchard Park Estates, Inc., 73 A.D.3d 1263,......
  • Farrugia v. 1440 Broadway Assocs., 4901
    • United States
    • New York Supreme Court Appellate Division
    • July 12, 2018
    ...the complaint. Defendants failed to demonstrate their entitlement to judgment as a matter of law (seeLopez v. New York Life Ins. Co.,90 A.D.3d 446, 934 N.Y.S.2d 136 [1st Dept. 2011] ). Moreover, there are issues of fact whether the exposed opening in the metal plate was open and obvious and......
  • Farrugia v. 1440 Broadway Assocs., 4901
    • United States
    • New York Supreme Court Appellate Division
    • January 18, 2018
    ...the complaint. Defendants failed to demonstrate their entitlement to judgment as a matter of law (see Lopez v. New York Life Ins. Co., 90 A.D.3d 446, 934 N.Y.S.2d 136 [1st Dept. 2011] ). Moreover, there are issues of fact whether the exposed opening in the metal plate was open and obvious a......
  • 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)
    • April 25, 2014
    ...that its work did not cause the leak. Corprew v. City of New York, 106 A.D.3d 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. Part......
  • Hannigan v. Staples, Inc., 521532.
    • United States
    • New York Supreme Court Appellate Division
    • March 31, 2016
    ...summary judgment for either contractual or common-law indemnification is premature (see Lopez v. New York Life Ins. Co., 90 A.D.3d 446, 448, 934 N.Y.S.2d 136 [2011] ; Mesler v. PODD LLC, 89 A.D.3d 1533, 1534–1535, 933 N.Y.S.2d 493 [2011] ; Cook v. Orchard Park Estates, Inc., 73 A.D.3d 1263,......
  • Farrugia v. 1440 Broadway Assocs., 4901
    • United States
    • New York Supreme Court Appellate Division
    • July 12, 2018
    ...the complaint. Defendants failed to demonstrate their entitlement to judgment as a matter of law (seeLopez v. New York Life Ins. Co.,90 A.D.3d 446, 934 N.Y.S.2d 136 [1st Dept. 2011] ). Moreover, there are issues of fact whether the exposed opening in the metal plate was open and obvious and......
  • Farrugia v. 1440 Broadway Assocs., 4901
    • United States
    • New York Supreme Court Appellate Division
    • January 18, 2018
    ...the complaint. Defendants failed to demonstrate their entitlement to judgment as a matter of law (see Lopez v. New York Life Ins. Co., 90 A.D.3d 446, 934 N.Y.S.2d 136 [1st Dept. 2011] ). Moreover, there are issues of fact whether the exposed opening in the metal plate was open and obvious a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT