Regno v City of New York

Regno v City of New York 2011 NY Slip Op 07518 Decided on October 25, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 25, 2011
Mazzarelli, J.P., Friedman, Catterson, Renwick, Richter, JJ.
5849 109524/09

[*1]James G. Regno, et al., Plaintiffs,

v

The City of New York, et al., Defendants. Almar Plumbing & Heating Corp., etc., Third-Party Plaintiff-Appellant, Bruno Grgas, Inc., Third-Party Defendant-Respondent. [And Another Action]




Marshall Conway Wright & Bradley, P.C., New York (Leonard
Steven Silverman of counsel), for appellant.
Milber Makris Plousadis & Seiden, LLP, New York (Peter J.
Morris of counsel), for respondent.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered October 4, 2010, which granted third-party defendant's motion for summary judgment dismissing the third-party complaint as against it, unanimously affirmed, with costs.

Third-party defendant Bruno Grgas, Inc. (Grgas) established prima facie that there was no written indemnity agreement in
existence between the parties on the date of plaintiff's accident. The burden then shifted to third-party plaintiff-appellant Almar Plumbing & Heating Corp. (Almar). Almar failed to raise an issue of fact as to whether the agreement signed in 2009, seven months after the accident, was effective as of a date before plaintiff's accident and that the parties intended it to have retroactive effect (see Burke v Fisher Sixth Ave. Co., 287 AD2d 410 [2001]; compare Podhaskie v Seventh Chelsea Assoc., 3 AD3d 361 [2004]). Moreover, Almar failed to establish that, at the time of plaintiff's accident, Grgas was contractually obligated to procure insurance on its behalf and to name it as an additional insured. Thus, Almar's claim for breach of contract was properly dismissed (see id.).

In addition, Almar failed to demonstrate an evidentiary basis for its assertion that discovery will reveal further facts or evidence essential to opposing the summary judgment motion,
and therefore, the motion was not premature (see 2386 Creston Ave. Realty, LLC v M-P-M Mgt. [*2]Corp., 58 AD3d 158, 162-163 [2008], lv denied 11 NY3d 716 [2009]).

We find Almar's remaining arguments unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 25, 2011

CLERK