Koumbiadis v Glenn

[*1] Koumbiadis v Glenn 2010 NY Slip Op 52113(U) [29 Misc 3d 1232(A)] Decided on December 6, 2010 Supreme Court, Queens County Markey, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 6, 2010
Supreme Court, Queens County

Nicholas Koumbiadis and JANICE KOUMBIADIS, Plaintiffs,

against

Tsemach Glenn, Defendant.



24266/2008



For the Plaintiff: Wooster & Wooster, by Scott Wooster, Esq., 666 Old Country Road, Garden City, New York 11530-2004

For the Defendant & Third-Party Plaintiff Tesemach Glenn: Law Office of Andrea Sawyer, by John P. Moroney, Esq., 3 Huntington Quadrangle, P.O. Box 9028, Melville, New York, 11747

For the Third-Party Defendants: Kevin E. Rockitter, P.C., by Kevin E. Rockitter, Esq., 180 Froehlich Farm Blvd., Woodbury, New York, NY 11797-2923

Charles J. Markey, J.

This is an action to recover for personal injuries plaintiff Nicholas Koumbiadis (hereinafter "plaintiff," to avoid confusion with John Koumbiadis, the third-party defendant) allegedly sustained on premises owned by defendant. Plaintiff has alleged that, on September 1, 2008, he was injured while he was cutting wood in the driveway of the premises and the table saw he was using moved as a result of a defect in the driveway. [*2]

Plaintiff's wife, Janice Koumbiadis, has a derivative cause of action for loss of services. Defendant commenced a third-party action against J & K Painting and John Koumbiadis ("John Koumbiadis" to avoid confusion with plaintiff's name). John Koumbiadis was doing business under the trade name of J & K Painting and had been doing work at the premises prior to the date of the accident. Plaintiff was allegedly cutting wood for John Koumbiadis at the time of the incident.

Plaintiff has alleged that his injuries in the instant action arose from the type of work being performed and a dangerous condition on the premises. On this motion, defendant, therefore, bears the initial burden of demonstrating that he did not supervise or control plaintiff's work (see, Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]; Mas v Kohen, 283 AD2d 616, 617 [2nd Dept. 2001]), and that he did not create the alleged dangerous condition or have actual or constructive notice of it (see Bridges v Wyandanch Community Dev. Corp., 66 AD3d 938, 940 [2nd Dept. 2009]).

The defendant/third-party plaintiff Tsemach Glenn ("defendant" or "Glenn") moves for summary judgment dismissing the complaint and all cross claims against him. Third-party defendant John Koumbiadis moves for summary judgment dismissing the third-party complaint against him. Glenn moves for an order striking the answer of third-party defendants J & K Painting and John Koumbiadis, or, in the alternative, for an order compelling J & K Painting and John Koumbiadis to respond to his disclosure demands.

Upon the foregoing papers, defendant Glenn has relied upon, among other things, the deposition testimony of plaintiff and his own testimony. Defendant testified that he was not at home at the time of the incident, that he did not move the table saw on the date of the incident, and that he did not have anyone move it on his behalf. However, plaintiff testified that he was not sure whether or not the defendant left the premises on the date of the incident. Plaintiff further testified that, when he returned to using the table saw after taking a break, he noticed that the table saw had been moved just prior to when the incident occurred. He further testified that defendant admitted to him that, while plaintiff was on a break, the defendant had moved the table saw to a different part of the driveway from where plaintiff had placed it.

Based upon this conflicting evidence, defendant has failed to satisfy his prima facie burden of eliminating any material issues of fact (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Napolitano v Suffolk County Dept. of Pub. Works, 65 AD3d 676, 677-678 [2nd Dept. 2009]). The opposition papers thus need not be considered (see, Napolitano v Suffolk County Dept. of Pub. Works, 65 AD3d at 678, supra ), and the defendant is not entitled to the relief sought on this motion.

John Koumbiadis has moved for summary judgment dismissing the third-party complaint against him and has relied upon, among other things, defendant's deposition testimony and his own testimony. The third-party complaint contains causes of action for contractual indemnification and breach of contract, including a claim for breach of contract to procure [*3]insurance. In light of the evidence presented by John Koumbiadis and defendant's voluntary discontinuance of these claims, John Koumbiadis has demonstrated that he is entitled to the dismissal of these claims.

With regard to the third-party claim against John Koumbiadis for indemnification and/or contribution arising out of John Koumbiadis' alleged ownership of the table saw involved in the incident, based upon John Koumbiadis' testimony that he did not own the saw, he has satisfied his prima facie burden. In opposition, defendant Glenn has submitted recordings of conversations between defendant and John Koumbiadis, in which John Koumbiadis allegedly admitted ownership of the table saw. However, since these recordings were not properly authenticated, the defendant has failed to raise a triable issue of fact. (concerning authentication of tape-recordings, see People v Ely, 68 NY2d 520, 527 [1986]; Stapleton v Greiner, 2000 WL 1207259 [EDNY 2000] [Raggi, J.]; accord, Shafi v Motta, 73 AD3d 729 [2nd Dept. 2010]; Merber v 37 West 72nd St., Inc., 29 Misc 3d 415 [Sup Ct New York County 2010]; Antwi v HVT, Inc., 2009 WL 295704, 2009 NY Slip Op 51937 [U] [Sup Ct Bronx County 2009]). John Koumbiadis is thus entitled to the dismissal of the third-party cause of action for common-law indemnification arising out of his alleged ownership of the table saw.

The third-party complaint has also alleged claims for common-law indemnification based upon John Koumbiadis' negligence. In order to be entitled to the dismissal of these claims, John Koumbiadis must demonstrate "prima facie, that [he] neither was negligent nor had the authority to direct, supervise, or control the work giving rise to the injury" (Mid-Valley Oil Co., Inc. v Hughes Network Sys., Inc., 54 AD3d 394, 396 [2nd Dept. 2008], leave dismissed in part and denied in part, 12 NY3d 881 [2009]; see, Benedetto v Carrera Realty Corp., 32 AD3d 874, 875-876 [2nd Dept. 2006]).

John Koumbiadis testified that, during the night before the incident, he instructed plaintiff on how to cut certain pieces of wood belonging to him at the subject premises and that he "left [plaintiff] a paper and . . . told him how to cut" the wood. In light of this evidence, John Koumbiadis has failed to satisfy his prima facie burden. Thus, the opposition papers need not be considered (see, Napolitano v Suffolk County Dept. of Pub. Works, 65 AD3d at 678, supra ), and John Koumbiadis is not entitled to the relief sought on this branch of his motion.

Defendant Glenn has also moved for an order striking the answer of J & K Painting and John Koumbiadis for failure to comply with disclosure demands, or, in the alternative, for an order compelling J & K Painting and John Koumbiadis to respond to his disclosure demands. In opposition, John Koumbiadis has submitted his response to defendant's disclosure demands. The Court also notes that, pursuant to a so-ordered stipulation, the parties have agreed that all discovery in the main action is complete.

As stated by the Appellate Division, Second Judicial Department: "The drastic remedy of striking a pleading or dismissal pursuant to CPLR 3126 for failure to comply with court-ordered disclosure should be granted only where the conduct of the resisting party is shown to be willful [*4]and contumacious" (Moray v City of Yonkers, 76 AD3d 618 [2nd Dept. 2010]; accord, Rawlings v Gillert,AD3d, 2010 WL 4539527 [2nd Dept. 2010]; Lomax v Rochdale Village, Inc., 76 AD3d 999 [2nd Dept. 2010]; Tornheim v Blue & White Food Prods. Corp., 73 AD3d 749, 750 [2nd Dept. 2010]). The defendant has failed to make such a showing.

However, the third-party defendant John Koumbiadis is directed to submit an affidavit providing all the last known addresses and telephone numbers for Carlos a/k/a Carlito and Ricky, and the names, addresses, and telephone numbers of all contractors or subcontractors that he retained or brought to do work at the subject premises. John Koumbiadis is also directed to produce copies of all pages contained in his notebook as testified to at his deposition. Defendant Glenn's instant motion is denied in all other respects. The foregoing affidavits and disclosure must be furnished no later than 20 days from the date of entry of this decision.

Accordingly, defendant Glenn's motion for summary judgment dismissing the complaint and all cross claims against him is denied.

The branches of John Koumbiadis's motion for summary judgment dismissing the causes of action in the third-party complaint based upon contractual indemnification, breach of contract, and common-law indemnification arising out of Koumbiadis' alleged ownership of the table saw are granted, and his motion is denied in all other respects.

The branch of defendant Glenn's motion for an order striking John Koumbiadis's answer is denied, and the branch of his motion for an order compelling John Koumbiadis to respond to his disclosure demands is granted, as stated above.

Counsel for the parties are required to appear at the Trial Assignment Part on February 7, 2011.

Dated: December 6, 2010

J.S.C.