McCoy v. Medford Landing, L.P., 2015–03996

• Decision Date: 26 September 2018
• Docket Number: 2015–03996,2016–10491,2016–01222,Index No. 26401/09
• Citation: 84 N.Y.S.3d 224,164 A.D.3d 1436
• Parties: Grace MCCOY, plaintiff-respondent, v. MEDFORD LANDING, L.P., defendant third-party/second third-party plaintiff-appellant-respondent; Harte Landscaping, Inc., et al., third-party defendants-respondents-appellants; NGM Insurance Company, second third-party defendant-respondent.
• Court: New York Supreme Court — Appellate Division

164 A.D.3d 1436

84 N.Y.S.3d 224

Grace MCCOY, plaintiff-respondent,

v. MEDFORD LANDING, L.P., defendant third-party/second third-party plaintiff-appellant-respondent;Harte Landscaping, Inc., et al., third-party defendants-respondents-appellants;NGM Insurance Company, second third-party defendant-respondent.

2015–03996

2016–01222

2016–10491

Index No. 26401/09

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

Argued—December 12, 2017

September 26, 2018

Shein & Associates, P.C. (Carol R. Finocchio, New York, N.Y. [Marie R. Hodukavich ], of counsel), for defendant third-party/second third-party plaintiff-appellant-respondent.

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Michael Reagan of counsel), for third-party defendants-respondents-appellants.

Gruenberg Kelly Della, Ronkonkoma, N.Y. (Zachary M. Beriloff of counsel), for plaintiff-respondent.

Brill & Associates, P.C., New York, N.Y. (Corey M. Reichardt of counsel), for second third-party defendant-respondent.

RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant third-party/second third-party plaintiff appeals, and the third-party defendants cross-appeal, from (1) an order of the Supreme Court, Suffolk County (James Hudson, J.), dated January 30, 2015, and (2) an order of the same court dated December 15, 2015, and the defendant third-party/second third-party plaintiff appeals from (3) a judgment of the same court (Paul J. Baisley, Jr., J.) entered August 30, 2016. The order dated January 30, 2015, insofar as appealed from, denied the motion of the defendant third-party/second third-party plaintiff for summary judgment dismissing the complaint, the separate motion of the defendant third-party/second third-party plaintiff for summary judgment on the third-party causes of action for contractual indemnification, for common-law indemnification, and alleging breach of contract, and those branches of the separate motion of the defendant third-party/second third-party plaintiff which were for summary judgment declaring that the second third-party defendant is obligated to defend and indemnify it in the main action and to reimburse it for costs, disbursements, and attorneys' fees incurred in defending the main action. The order dated January 30, 2015, insofar as cross-appealed from, denied the motion of the defendant third-party/second third-party plaintiff for summary judgment dismissing the complaint. The order dated December 15, 2015, insofar as appealed from, denied the motion of the defendant third-party/second third-party plaintiff for leave to reargue its motions for summary judgment. The order dated December 15, 2015, insofar as cross-appealed from, denied the third-party defendants' motion for leave to reargue the motion of the defendant third-party/second third-party plaintiff for summary judgment dismissing the complaint. The judgment, upon a jury verdict in favor of the defendant third-party/second third-party plaintiff on the issue of liability, is in favor of the defendant third-party/second third-party plaintiff and against the plaintiff dismissing the complaint. The parties have stipulated to withdraw so much of the appeals and cross appeals as relate to issues raised against the plaintiff and the issue of common-law indemnification.

ORDERED that the appeal from so much of the order dated January 30, 2015, as denied the motion of the defendant third-party/second third-party plaintiff for summary judgment dismissing the complaint and that branch of the separate motion of the defendant third-party/second third-party plaintiff which was for summary judgment on the third-party cause of action for common-law indemnification is dismissed as withdrawn; and it is further,

ORDERED that the appeal from so much of the order dated January 30, 2015, as denied that branch of the motion of the defendant third-party/second third-party plaintiff which was for summary judgment on the third-party cause of action for contractual indemnification, except to the extent that it sought to recover the costs, disbursements, and attorneys' fees incurred in defending the main action, and that branch of the separate motion of the defendant third-party/second third-party plaintiff which was for summary judgment declaring that the second third-party defendant is obligated to defend and indemnify it in the main action is dismissed as academic; and it is further,

ORDERED that the cross appeal from the order dated January 30, 2015, is dismissed as withdrawn; and it is further,

ORDERED that the appeal and cross appeal from the order dated December 15, 2015, are dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the appeal from the judgment is dismissed, as the defendant third-party/second third-party plaintiff is not aggrieved by the judgment (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132 ); and it is further,

ORDERED that the order dated January 30, 2015, is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendant third-party/second third-party plaintiff which was for summary judgment declaring that the second third-party defendant is obligated to reimburse it for costs, disbursements, and attorneys' fees incurred in defending the main action, and substituting therefor a provision granting that branch of the motion; as so modified, the order dated January 30, 2015, is affirmed insofar as reviewed, and the matter is remitted to the Supreme Court, Suffolk County, for severance of the second third-party action and the entry of a judgment declaring that the second third-party defendant is obligated to reimburse the defendant third-party/second third-party plaintiff for costs, disbursements, and attorneys' fees incurred in defending the main action; and it is further,

ORDERED that one bill of costs is awarded to the third-party defendants, payable by the defendant third-party/second third-party plaintiff, and one bill of costs is awarded to the defendant third-party/second third-party plaintiff, payable by the second third-party defendant.

On February 3, 2009, the plaintiff allegedly was injured when she slipped and fell on ice in a parking lot on property owned by Medford Landing, L.P. (hereinafter Medford). The plaintiff commenced this action against Medford to recover damages for personal injuries. Thereafter, Medford commenced a third-party action against the third-party defendants, which provided snow removal services at the premises pursuant to a contract with Medford. The third-party complaint asserted, inter alia, causes of action based on contractual and common-law indemnification, as well as a cause of action sounding in breach of contract for failure to procure insurance naming Medford as an additional insured. Medford also commenced a second third-party action against NGM Insurance Company (hereinafter NGM), which issued a general liability insurance policy to the third-party defendants. Medford moved for summary judgment on the third-party causes of action for contractual indemnification, for common-law indemnification, and alleging breach of contract, and...