Manicone v. City of N.Y.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: JOSEPH COVELLO
• Citation: Manicone v. City of N.Y., 905 N.Y.S.2d 640, 75 A.D.3d 535 (N.Y. App. Div. 2010)
• Decision Date: 13 July 2010
• Parties: Andrew MANICONE, plaintiff-respondent, v. CITY OF NEW YORK, defendant-respondent, Roosevelt Savings Bank, respondent-appellant, W.E. Bonnie Contracting, Inc., et al., appellants-respondents.

905 N.Y.S.2d 640

75 A.D.3d 535

Andrew MANICONE, plaintiff-respondent,

v. CITY OF NEW YORK, defendant-respondent,Roosevelt Savings Bank, respondent-appellant,W.E. Bonnie Contracting, Inc., et al., appellants-respondents.

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

July 13, 2010.

Gorton & Gorton LLP, Mineola, N.Y. (Thomas P. Gorton of counsel), for appellant-respondent W.E. Bonnie Contracting, Inc.

Havkins Rosenfeld Ritzert & Varriale, LLP, Mineola, N.Y. (Michelle L. Meiselman of counsel), for appellants-respondents National Rent-A-Fence Co., National Construction Rentals, Inc., and National Construction Rentals, doing business as National Rent-A-Fence.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Richard E. Lerner and Patrick J. Lawless of counsel), for respondent-appellant.

Robert G. Schacht, PLLC, Staten Island, N.Y. (Robert A. Mulhall of counsel), for plaintiff-respondent.

JOSEPH COVELLO, J.P., THOMAS A. DICKERSON, RANDALL T. ENG, and LEONARD B. AUSTIN, JJ.

In an action to recover damages for personal injuries, the defendant W.E. Bonnie Contracting, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Velasquez, J.), dated February 18, 2009, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, the defendants National Rent-A-Fence Co., National Construction Rentals, Inc., and National Construction Rentals, doing business as National Rent-A-Fence, separately appeal from so much of the same order as denied their separate motion for summary judgment dismissing the complaint and all cross claims insofar as assertedagainst them or, in the alternative, for summary judgment on their cross claim for contractual indemnification against the defendant Roosevelt Savings Bank, and the defendant Roosevelt Savings Bank separately 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.

ORDERED that the order is affirmed, with one bill of costs to the plaintiff payable by the defendants appearing separately and filing separate briefs.

The plaintiff allegedly was injured when he tripped and fell over a bracket supporting a temporary fence in front of premises owned by the defendant Roosevelt Savings Bank (hereinafter the bank). The temporary fence had been erected on the public sidewalk in front of the bank because the exterior facade of the building was undergoing renovation. Photographs of the accident site taken two days after the accident showed that the brackets supporting the fence were rectangular in shape, and protruded a considerable distance beyond the fence, thus narrowing the portion of the sidewalk available for unobstructed passage.

Following the accident, the plaintiff commenced this action against, among others, the bank, W.E. Bonnie Contracting, Inc. (hereinafter W.E. Bonnie), the general contractor of the renovation project, and National Rent-A-Fence Co. and National Construction Rentals, Inc. (hereinafter together the fence company defendants), who had supplied and installed the fence. After depositions had been conducted, W.E. Bonnie and the bank separately moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, and the fence company defendants moved for the same relief or, in the alternative, for summary judgment on their cross claim against the bank for contractual indemnification. In support of its motion for summary judgment, W.E. Bonnie argued that it could not be held liable because it was not contractually responsible for the installation or maintenance of the temporary fence, and had not created the allegedly dangerous condition which caused the plaintiff's fall. In support of their motions for summary judgment, both the bank and the fence company defendants contended that they could not be held liable because the support bracket over which the plaintiff tripped was open and obvious, and not inherently dangerous. The fence company defendants also asserted that they owed no duty of care to the plaintiff. The SupremeCourt denied the defendants' respective motions, and we affirm.

Contrary to W.E. Bonnie's contention, the Supreme Court properly denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law,...