Dollard v WB/Stellar IP Owner, LLC

Dollard v WB/Stellar IP Owner, LLC 2012 NY Slip Op 04825 Decided on June 14, 2012 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 June 14, 2012
Andrias, J.P., Friedman, Sweeny, Manzanet-Daniels, Román, JJ.
7936 117084/09 590494/10 590159/11

[*1]Rose Welsh Dollard, Plaintiff,

v

WB/Stellar IP Owner, LLC, et al., Defendants. [And A Third Party Action] WB/Stellar IP Owner, LLC, Second Third-Party Plaintiff-Respondent, New York City Economic Development Corporation, Second Third-Party Defendant, Friends of Greenwich Street, Inc., Second Third-Party Defendant-Appellant.




Willkie Farr & Gallagher LLP, New York (Dan C. Kozusko of
counsel), for appellant.
Brill & Associates, P.C., New York (Corey M. Reichardt of
counsel), for respondent.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered November 4, 2011, which denied the motion of second third-party defendant Friends of Greenwich Street, Inc. (Friends) to dismiss the second third-party complaint as against it, unanimously affirmed, without costs.

Plaintiff was injured when she allegedly tripped and fell on a cracked and uneven portion of the sidewalk that abutted a building owned by defendant/second third-party plaintiff WB/Stellar IP Owner, LLC (Stellar). Stellar commenced this second third-party action against, inter alia, Friends and asserted claims for contribution and common-law indemnification.

"In assessing a motion under CPLR 3211(a)(7). . . a court may freely consider affidavits submitted by the [non-moving party] to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Leon v Martinez, 84 NY2d 83, 88 [1994] [internal quotation marks and citations omitted]). Here, the court properly concluded that the pleadings together with the affidavit from Stellar's property manager sufficiently alleged claims for contribution and common-law indemnification against Friends. Stellar and its property manager stated that Friends installed, inspected and [*2]maintained the portion of the sidewalk on which plaintiff fell and that it did so in a negligent manner
(see generally Raquet v Braun, 90 NY2d 177, 182-183 [1997]; see Velez v 19—27 Orchard St. LLC, 70 AD3d 488 [2010]; Peretich v City of New York, 263 AD2d 410, 411 [1999]).

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

ENTERED: JUNE 14, 2012

CLERK