Heller v 124 Assoc., Inc.

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Heller v 124 Assoc., Inc. 2020 NY Slip Op 35077(U) December 11, 2020 Supreme Court, Nassau County Docket Number: Index No: 613611/2018 Judge: Arthur M. Diamond Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX INDEX NO. NO. 613611/2018 613611/2018 FILED: ___ NASSAU 12/17/2020 PM -N-Y-SC_E_F_D-OC N_O_._6_3_COUNTY _ _ _ _CLERK ____ _ _ _ _ _ _01:47 ____ ...J(.{) RECEIVED NYSCEF: NYSCEF: 12/14/2020 NYSCEF DOC. NO. 63 SUPREME COURT· STATE OF NEW YORK Present: HON; ARTHUR M~ DIAMOND Justice Supreme Court ---'----..........---------.......;..·,......................._.. . . -••••••X WARREN HELLER, TRIAL PART: 5 Plaintiff, NASSAU COUNTY INDEX NO: 6136ll/2018 ~against124 ASSOCIATES, INC., MOTIO:N SEQ #: 1 Defendant, SUBMIT DATE: 11/6/20 ·----··--·-·--·····-···-·-···-·-···--·····-·-···..:~•••~x 124 ASSOCIATES, INC., Third-Party Plaintiff; -again:stGRACEY SERVICES,LLC, PICTURES PLUS, and LIVING LEGENDS MEMORABILIA ANU . COLLECTIBLES, INC. Third-Party Defendant, -----------···-~·----------·-·----·---·-···--··--·-·---------..-·....x · The foil owing papers having been re~d on this motion: Notice: .of Motion ............ ,..... • ... •· ...... • l. Third-Party Defendant Living Legends moves this Court for an order, pursuant to CPLR §3212, to dismiss the third-party complaint and any cross~claims asserted against it in their entirety. At the time of submission; the motion was unopposed, and such remains the case to date. Based upon the following~ the moticm for summaryjudgmentis granted and the third-party complaintis dismissed against Third-Party Defendant Living Legend, only; The within e.ction was commenced py Plaintiff following a slip~and-fall on ice outside 124 Long Beach Road, Ro,ckville Centre, Nassau County, New York incident, Plaintiff alleges that he sustained injuries to As a result of ~is his ribcage, wluch required surgery, and other·associated injuries~ The subject address was owned by Defertdant/Thirci~Party PlaiI1tiff lUld split into two storefronts, one which was occupied by Third~Party Defendant Picture Plus and the other by TI:1.ird•Party Defendant Liying Legends • .In between these two storefronts wa& a gµtier _ _ _ .,,, ______ ,_____ ,_ _ _ _ _ _ _ _ _ _ _ _ _ _ _--=-1....,o::..:::f:.......:.4 1 of 4 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ,,, ,,,,.,,,,,,,_., _ _ [* 1] FILED: NASSAU COUNTY CLERK 12/17/2020 01:47 PM NYSCEF DOC. DOC. NO. NO. 63 63 INDEX INDEX NO. NO. 613611/2018 613611/2018 RECEIVED NYSCEF: NYSCEF: 12/14/2020 with a spout at the end that allowed water to exit onto the sidewalk. According to the swam testimony of Plaintiff, it was this area, which had frozen over, where he slipped and fell causing his injuries. Third-Party Defendant Living Legends, as .a tenant at the subject premises, had a valid lease agreement with Defendant/Third-Party Plaintiff when the incident took place on January 5, 2018, having executed a three-,year contract on August 1, 2016 .. In the rider to that agreement, in paragrnph 27, Thltd"'.Party Defendant Living Legends agreed to pay one~third of the cost for · snow removal and agreed to indemnify Defendant/Third-Party Plaintiff for any damage:s incurred fat its failure to remove the snow. The agreement was silent as to miy obligation on the part ofThird~Party Defendant Living Legend to remediate other conditions on the sidewalk in front of its store, including ice. The proponent of a summary judgment motion must ·make aprima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v; Prospect Hospital 68 NY2d 320, 508 NYS2d 923 (1986). To make a prima facie showing, the motion must be supported by affidavit, by a copy ofthe.pleadings and by other available proof, such as depositions and.written &<lmissions. Id. Once a prima facie showing has been made, ·the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof' in admissible form sufficient to establish the existence of material issues of fact which require a trial ofthe action. Id.; see also Zuckermanv. City ofNewYork,49 NY2d 557; 427NYS2d595 (1980). To establish a claim for conrmort law inderhnificatioh, a third-party plaintiff isrequii'ed to prove not only that it was not negligent, but also that the proposed indemnitor was responsible for the negligence that contributed to the accident, or in the absence of any such negligence; had the authorityto direct, supervise, and control the work giving tise to the jnjury." Bellefleur v. Newark Beth Israel Medical Center, 66 AD3d 807, 888NYS2d 81 (2 nd Dept., 2009). Aparty's right to contractual indemnification depends upon the. spe_cific language of the relevant contract/' Castillo v. Port Authority ofNewYork & NewJe~sey. l59AD3d 792, 72 NYS3d 582 (2018); The promise to indelli.nify shouid not be found tirtless it can be clearly implied from the -language ~d pi.itpose of the entire agreement and the surrounding circumstances/' Morris v; Home Depot USA, 152A.03d 669, 59 NYS3d 92 (2mi_Dept., 2017). [* 2] 2 of 4 INDEX INDEX NO. NO. 613611/2018 613611/2018 FILED: NASSAU COUNTY CLERK 12/17/2020 01:47 PM NYSCEF DOC. DOC. NO. NO. 63 63 RECEIVED NYSCEF: NYSCEF: 12/14/2020 To sustain a third-party cause of action for contribution, a third-party plaintiff is required to show thaf a duty was owed to the plaintiffs as injured parties and that a breach of that duty contributed to the alleged injuries, Eisman v. Village of East Hills, 149 AD3d 806, 52 NYS3d 115 (2 nd·Dept.~ 2017). The critical requirement is that the breach of duty by the contributing party Il}Ust have had a part in causing or augmenting the injury for which contribution is sought. Id at 808-809, 118. In support of the motion, Third~Party Defendant Living Legends has submitted a deposition transcript from Plaintiff, who is also its principal, as well as testimony submitted during two separate hearings conducted pursuant to General Municipal Law §50,..h; additionally, it has submitted photographs, a copy of a lease agreement between Defendant/Third,.Party Plaintiff and Third-Party Defendant Living Legends, and a receipt for snow removal services performed by Third,-Party Defendant Gracey, all of which were authenticated by Plaintiff during his deposition. That document,. which was authenticated by Plaintiff at his deposition, indicates that Third-Party Defendant Gracey perfonne~ snow removal services at the behest of Defendant/Third-Party Plaintiff; thus, Third7Party Defendant Living Legends was not actively negligent in creating the condition that.caused Plaintiff's.injury. Moreover, Plaintiff's testim_ony was. very clear that he slipped on ice that had accumulated and hot on snow. Based upon the aforementioned evidence submitted in support ofthe motion, the Court is satisfied that Third.-Party- Defendant Living Legends does ,not bear any ·responsibility fat tlle happening of this accident and has satisfied its burden on the motion. Therefore; in the absence of any opposition to demonstrate that a triable issue of fact still ex.ists in the case, it is entitled to judgment as a matter of law and the application by Third-Party Defendants is granted in its entirety. Third-Party Defendant Living Legend shall file and serve a copy ofthe within order with notice of entry upon all parties served with the motion within thirty (30) days front the date -of this order, ·Thereafter, the remaining parties shall appear as scheduled irt the DCM Pretrial Part ofSuprem.e Court, Nassau County, on January 27, 2021. Given the dismissal directed herein, the. caption is hereby amended to read as follows: "WARREN HELLER, Plaintiff, agai~t 124 ASSOCIATES, INC;, Defendant. 124. ASSOCIATES, INC., Third-Party- Plaintiff, against GR.ACEY SERVICES, LLC:, and [* 3] 3 of 4 INDEX INDEX NO. NO. 613611/2018 613611/2018 FILED: NASSAU COUNTY CLERK 12/17/2020 01:47 PM NYSCEF DOC. DOC. NO. NO. 63 63 RECEIVED NYSCEF: NYSCEF: 12/14/2020 PICTURES PLUS, Third-Party Defendants." Finally. in reviewing the NYSCEF system following the submission of the instant motion, it appears as if Defendant/Third-Party Plaintiff has attempted to file a second third-party complaint, brining in yet another party to this action. However, it appears that this filing, NYSCEF Document Number 44, was rejected by the clerk's office and has yet to be corrected. Thus, the proposed second-third party complaint currently is inapplicable, and the proposed Second Third-Party Defendant is not yet a party to this action. This hereby constitutes the decision and order of this Court DATED: December 11, 2020 . ARTHUR M. DIAMOND J.S.C ENTERED Dec 17 2020 NASSAU COUNTY COUNTY CLERK"S OFFICE 4 9_( __4 ~·-·········· [* 4]- - - - - - - - - - - - - - - - - - - - - - - - - - · 14 ___of

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