Narvaez v. 2914 Third Ave. Bronx Llc

• Decision Date: 13 October 2011
• Citation: 2011 N.Y. Slip Op. 07165,88 A.D.3d 500,930 N.Y.S.2d 561
• Court: New York Supreme Court — Appellate Division
• Parties: Herminia NARVAEZ, Plaintiff–Respondent,v.2914 THIRD AVENUE BRONX, LLC, et al., Defendants–Appellants,KK & J, LLC, Defendant.2914 Third Avenue Bronx, LLC, et al., Third–Party Plaintiffs–Appellants–Respondents,v.2914 Sportswear Realty Corp., Third–Party Defendant–Respondent–Appellant.

88 A.D.3d 500
930 N.Y.S.2d 561
2011 N.Y. Slip Op. 07165

Herminia NARVAEZ, Plaintiff–Respondent,
v.
2914 THIRD AVENUE BRONX, LLC, et al., Defendants–Appellants,KK & J, LLC, Defendant.2914 Third Avenue Bronx, LLC, et al., Third–Party Plaintiffs–Appellants–Respondents,
v.
2914 Sportswear Realty Corp., Third–Party Defendant–Respondent–Appellant.

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

Oct. 13, 2011.

[930 N.Y.S.2d 562]

Harrington, Ocko & Monk, LLP, White Plains (Dawn M. Foster of counsel), for appellants/appellants-respondents.Burke, Lipton & Gordon, White Plains (Ashley E. Sproat of counsel), for respondent-appellant.Peña & Kahn, PLLC, Bronx (Diane Welch Bando of counsel), for respondent.GONZALEZ, P.J., ANDRIAS, SAXE, SWEENY, JJ.

[88 A.D.3d 500] Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered October 27, 2009, which denied defendants/third-party plaintiffs' motion for summary judgment dismissing the complaint or, in the alternative, for conditional summary judgment against third-party defendant on their indemnification claims, and denied third-party defendant's cross motion for summary judgment dismissing the third-party complaint, unanimously affirmed, without costs.

[88 A.D.3d 501] On August 11, 2005, plaintiff tripped and fell on an alleged defective sidewalk condition in front of the building located on 2914 Third Avenue in the Bronx. The premises were owned and managed by defendants/third-party plaintiffs 2914 Third Avenue Bronx LLC and Thor Equities LLC, respectively (collectively “Thor”), and leased to third-party defendant 2914 Sportswear Realty Corp. pursuant to an agreement dated July 18, 2005. Plaintiff commenced this action against Thor, alleging negligence, and Thor commenced a third-party action against 2914 Sportswear, seeking, among other things, common law and contractual indemnification.

The court properly denied Thor's motion for summary judgment dismissing the complaint, and 2914 Sportswear's cross motion for summary judgment dismissing the third-party complaint. Neither Thor nor 2914 Sportswear made a prima facie showing that plaintiff did not trip and fall on a sidewalk defect in front of their building. Although plaintiff, an elderly woman with a second-grade education, had difficulty articulating her thoughts during her deposition, her testimony as a whole is consistent with her claim that she tripped and fell on a raised sidewalk flag in front of 2914 Third Avenue. The maps submitted by Thor...