Roman v. 233 Broadway Owners, LLC

• Decision Date: 17 October 2012
• Parties: Mildred Belen ROMAN, respondent, v. 233 BROADWAY OWNERS, LLC, et al., defendants third-party plaintiffs-respondents-appellants, ADT Security Services, Inc., defendant-appellant-respondent; New York City Pension Fund, third-party defendant-respondent-appellant.
• Court: New York Supreme Court — Appellate Division

99 A.D.3d 882

955 N.Y.S.2d 52

2012 N.Y. Slip Op. 06936

Mildred Belen ROMAN, respondent,

v. 233 BROADWAY OWNERS, LLC, et al., defendants third-party plaintiffs-respondents-appellants,ADT Security Services, Inc., defendant-appellant-respondent;New York City Pension Fund, third-party defendant-respondent-appellant.

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

Oct. 17, 2012.

Calinoff & Katz, P.C., New York, N.Y. (Arnold I. Katz, Charles C. Eblen, Kansas City, Missouri, pro hac vice, and Bethany Munyan Shelton, pro hac vice, of counsel), for appellant-respondent.

Thomas D. Hughes, New York, N.Y. (Richard C. Rubinstein and David D. Hess of counsel), for defendants third-party plaintiffs-respondents-appellants.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Karen M. Griffin of counsel), for third-party defendant-respondent-appellant.

Michael N. David, New York, N.Y. (Kenneth J. Gorman of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, ARIEL E. BELEN, and CHERYL E. CHAMBERS, JJ.

In an action to recover damages for personal injuries, the defendant ADT Security Services, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Velasquez, J.), dated May 27, 2010, as denied those branches of its motion which were for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, denied its cross motion to strike the affidavit of the plaintiff's expert and preclude the plaintiff's expert from testifying at trial, and granted the plaintiff's cross motion for leave to amend her bill of particulars, the defendants third-party plaintiffs, 233 Broadway Owners, LLC, and Witkoff Group, Inc., cross-appeal, as limited by their brief, from so much of the same order as denied those branches of their cross motion which were for summary judgment dismissing the complaint and all cross claims insofar as asserted against them and for unconditional summary judgment on their third-party causes of action for common-law and contractual indemnification asserted against the third-party defendant, New York City Police Pension Fund, denied their separate cross motion to strike the affidavit of the plaintiff's expert and preclude the plaintiff's expert from testifying at trial, and granted the plaintiff's separate cross motion for leave to amend her bill of particulars, and the third-party defendant New York City Police Pension Fund separately cross-appeals, as limited by its brief, from so much of the same order as granted that branch of the cross motion of the defendants third-party plaintiffs, 233 Broadway Owners, LLC, and Witkoff Group, Inc., which was for conditional summary judgment on the third-party causes of action for common-law and contractual indemnification asserted by them against it.

ORDERED that the cross appeal by the defendants third-party plaintiffs, 233 Broadway, LLC, and Witkoff Group, Inc., from so much of the order as denied that branch of their cross motion which was for unconditional summary judgment on their third-party causes of action for common-law and contractual indemnification against the third-party defendant, New York City Police Pension Fund, and the separate cross appeal by the third-party defendant, New York City Police Pension Fund, from so much of the order as granted that branch of the cross motion of the defendants third-party plaintiffs, 233 Broadway Owners, LLC, and Witkoff Group, Inc., which was for conditional summary judgment on their third-party causes of action for common-law and contractual indemnification against it are dismissed as academic in light of our determination on the cross appeal by the defendants third-party plaintiffs, 233 Broadway Owners, LLC, and Witkoff Group, Inc., from so much of the order as denied that branch of their cross motion which was for summary judgmentdismissing the complaint and all cross claims insofar as asserted against them; and it is further,

ORDERED that the appeal by the defendant ADT Security Services, Inc., and the cross appeal by the defendants third-party plaintiffs, 233 Broadway Owners, LLC, and Witkoff Group, Inc., from so much of the order as denied their respective cross motions to strike the affidavit of the plaintiff's expert and preclude the plaintiff's expert from testifying at trial are dismissed ( see Cortez v. Northeast Realty Holdings, LLC, 78 A.D.3d 754, 757, 911 N.Y.S.2d 151); and it is further,

ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches of the cross motion of the defendants third-party plaintiffs, 233 Broadway Owners, LLC, and Witkoff Group, Inc., which were for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, and substituting therefor a provision granting those branches of the cross motion; as so modified, the order is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the defendants third-party plaintiffs, 233 Broadway Owners, LLC, and Witkoff Group, Inc., payable by the plaintiff.

At all relevant times, the plaintiff was employed by the third-party defendant, New York City Police Pension Fund (hereinafter the Pension Fund), and worked on the 19th floor of 233 Broadway in Manhattan (hereinafter the premises). The premises were owned by the defendant third-party plaintiff 233 Broadway Owners, LLC, managed by the defendant third-party plaintiff Witkoff Group, Inc. (hereinafter together the building defendants), and leased to the Pension Fund. Pursuant to a contract with the Pension Fund, the defendant ADT Security Services, Inc. (hereinafter ADT), had installed various security components related to a certain door at the premises. On August 22, 2003, the plaintiff attempted to open that door in order to accept a delivery. According to the plaintiff, she received an electrical shock upon opening the door, which caused her to sustain severe injuries.

In 2005, the plaintiff commenced this action against ADT and the building defendants, alleging negligence. ADT and the building defendants asserted various cross claims against each another. The building defendants then commenced a third-party action against the Pension Fund, seeking contribution, common-law indemnification, and contractual indemnification. In late 2008 and early 2009, ADT and the building defendants separately moved to strike the plaintiff's note of issue and for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them. In the alternative, the building defendants sought, inter alia, summary judgment on their third-party causes of action for common-law and contractual indemnification against the Pension Fund.

The plaintiff opposed the motions for summary judgment, relying on, among other things, an affidavit from a master electrician. She also cross-moved for leave to amend her bill of particulars so as to add allegations that the defendants violated sections 27–976 and 27–3025 of the Administrative Code of City of New York (hereinafter the Administrative Code). ADT and the building defendants opposed the plaintiff's cross motion, and separately cross-moved to strike the affidavit and preclude any trial...