Marcelin v 6 Bros. Realty Corp.

[*1] Marcelin v 6 Bros. Realty Corp. 2012 NY Slip Op 51461(U) Decided on July 25, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 25, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-2709 Q C2011-1413 Q C 2011-2771 Q C.

Yves Marcelin, Respondent,

against

6 Brothers Realty Corporation and NOVA PLUMBING & HEATING, INC., Appellants, -and- AMKO ELECTRICAL CONSTRUCTION & MAINTENANCE, INC., Defendant. 6 BROTHERS REALTY CORPORATION, Third-Party Plaintiff,

[*2]MAY AIR CORP., Appellant.

Appeals from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), dated August 3, 2010. The order, insofar as appealed from by defendant third-party plaintiff 6 Brothers Realty Corporation, denied its motion for summary judgment dismissing plaintiff's complaint, insofar as asserted against it, and all cross claims against it. The order, insofar as appealed from by defendant Nova Plumbing & Heating, Inc., denied its motion for summary judgment dismissing plaintiff's complaint, insofar as asserted against it, and all cross claims against it. The order, insofar as appealed from by third-party defendant May Air Corp., denied its motion for summary judgment dismissing plaintiff's complaint, insofar as asserted against defendant third-party plaintiff 6 Brothers Realty Corporation.

ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action to recover damages for personal injuries, plaintiff alleges that he fell through open cellar doors, in the sidewalk, leading to the basement of the premises owned by defendant third-party plaintiff 6 Brothers Realty Corporation (6 Brothers). At the time of the accident, there was ongoing construction work taking place in the basement. Defendant Nova Plumbing & Heating, Inc. (Nova) had been hired by 6 Brothers to work as a general contractor for the project, and the electrical work was subcontracted out to defendant AMKO Electrical Construction & Maintenance, Inc. (AMKO) and third-party defendant May Air Corp. (May). Plaintiff commenced actions against 6 Brothers, Nova, and AMKO, which actions have since been consolidated. 6 Brothers commenced a third-party action against May.

6 Brothers and Nova each separately moved for summary judgment dismissing plaintiff's complaint and all cross claims against them. May moved for summary judgment dismissing plaintiff's complaint, insofar as asserted against 6 Brothers. Insofar as is relevant to these appeals, the Civil Court denied the separate motions for summary judgment.

Based on the reasonable inferences to be drawn from the deposition testimony, taken as a whole, 6 Brothers, Nova, and May each failed to meet their initial burdens, as the movants, of establishing, prima facie, their entitlement to judgment as a matter of law (see Burgos v Aqueduct Realty Corp., 92 NY2d 544 [1998]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Khamis v CG Foods, Inc., 49 AD3d 606 [2008]; Xu v 688 Sixth Ave. Realty Co., 19 AD3d 687 [2005]; see generally Morejon v Rais Constr. Co., 7 NY3d 203 [2006]). In view of the foregoing, as the movants failed to make the prima facie showing necessary for an award of summary judgment, it is unnecessary to consider the adequacy of plaintiff's opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Restrepo v Rockland Corp., 38 AD3d 742 [2007]; Wolff v New York City Tr. Auth., 21 AD3d 956 [2005]). Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 25, 2012