Richards v. Passarelli

• Decision Date: 26 October 2010
• Citation: 77 A.D.3d 903,910 N.Y.S.2d 495
• Parties: Margaret RICHARDS, plaintiff-respondent, v. Guido PASSARELLI, et al., defendants-respondents, Arrow Line Striping Co., appellant.
• Court: New York Supreme Court — Appellate Division

910 N.Y.S.2d 495

77 A.D.3d 903

Margaret RICHARDS, plaintiff-respondent,

v. Guido PASSARELLI, et al., defendants-respondents,Arrow Line Striping Co., appellant.

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

Oct. 26, 2010.

Kaufman Borgeest & Ryan LLP, New York, N.Y. (Jacqueline Mandell and Dennis J. Dozis of counsel), for appellant.

Jones Hirsch Connors & Bull, P.C., New York, N.Y. (Scott E. Miller, R. Alexander Hulten, and Seth A. Frankel of counsel), for defendants-respondents Guido Passarelli, Lucy Passarelli, and Passarelli Family Partnership, L.P., a New York Limited Partnership.

Rivkin Radler, LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl F. Korman, and Melissa M. Murphy of counsel), for defendant-respondent EIP Leasing Services, Inc.

WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, RANDALL T. ENG, and PLUMMER E. LOTT, JJ.

In an action to recover damages for personal injuries, the defendant Arrow Line Striping Co. appeals from an order of the Supreme Court, Richmond County (McMahon, J.), dated September 12, 2008, which granted the plaintiff's motion for leave to amend the complaint to add it as a direct defendant, and thereupon denied its cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches of the cross motion of the defendant Arrow Line Striping Co. which were for summary judgment dismissing the cross claims for common-law indemnification asserted against it by the defendants Guido Passarelli, Lucy Passarelli, and Passarelli Family Partnership, L.P., a New York Limited Partnership, and the defendant Pier 1 Imports, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed, with one bill of costs to EIP Leasing Services, Inc., payable by Arrow Line Striping Co., and one bill of costs to Arrow Line Striping Co. payable by the defendants Guido Passarelli, Lucy Passarelli, and Passarelli Family Partnership, L.P., a New York Limited Partnership, and the defendant Pier 1 Imports.

The Supreme Court did not err in denying that branch of the cross motion of Arrow Line Striping Co. (hereinafter Arrow) which was for summary judgment dismissing the complaint insofar as asserted against it. Arrow failed to establish its prima facie entitlement to judgment as a matter of law, as it failed to show that it did not negligently create or exacerbate a dangerous condition in the course of painting arrows in a parking lot where the underlying accident allegedly occurred ( see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 142, 746 N.Y.S.2d 120, 773 N.E.2d 485; Schwint v. Bank St. Commons, LLC, 74 A.D.3d 1312, 904 N.Y.S.2d 220; Haracz v. Cee Jay, Inc., 74 A.D.3d 1145, 903 N.Y.S.2d 515; Mosca v. OCE Holding, Inc., 71 A.D.3d 1103, 898 N.Y.S.2d 204), or that the plaintiff's injuries were not a foreseeable consequence of its alleged negligence ( see Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666;Bingham v. Louco Realty, LLC, 36 A.D.3d 845, 829 N.Y.S.2d 194).

Furthermore, the Supreme Court did not err in granting the plaintiff's motion to amend the complaint to add Arrow as a direct defendant. Arrow, which...