Opinion
2012-02-14
Kathryn ABERMAN, et al., plaintiffs-respondents, v. RETAIL PROPERTY TRUST, et al., defendants third-party plaintiffs-appellants;Guy Pratt, Inc., third-party defendant-respondent.
Fiedelman & McGaw, Jericho, N.Y. (Joseph Horowitz of counsel), for defendants third-party plaintiffs-appellants. The Nolan Law Firm, New York, N.Y. (William Paul Nolan of counsel), for plaintiffs-respondents.
Fiedelman & McGaw, Jericho, N.Y. (Joseph Horowitz of counsel), for defendants third-party plaintiffs-appellants. The Nolan Law Firm, New York, N.Y. (William Paul Nolan of counsel), for plaintiffs-respondents. Law Offices of Todd M. McCauley, LLC, New York, N.Y. (Shirley J. Spira of counsel), for third-party defendant-respondent.ANITA R. FLORIO, J.P., ARIEL E. BELEN, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.
In an action to recover damages for personal injures, etc., the defendants third-party plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Brandveen, J.), dated September 1, 2010, as granted those branches of the third-party defendant's motion which were for summary judgment dismissing the third-party causes of action for common-law and contractual indemnification and the plaintiffs' second amended complaint insofar as asserted against the third-party defendant.
ORDERED that the appeal from so much of the order as granted that branch of the third-party defendant's motion which was for summary judgment dismissing the plaintiffs' second amended complaint insofar as asserted against it is dismissed, as the appellants are not aggrieved by that portion of the order ( see CPLR 5511; Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132); and it is further,
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the third-party defendant's motion which was for summary judgment dismissing the third-party cause of action for contractual indemnification, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as reviewed, without costs or disbursements.
The plaintiff Kathryn Aberman allegedly sustained personal injuries when she slipped and fell on ice in the parking lot of premises owned by the defendant Retail Property Trust (hereinafter Retail). Thereafter, the injured plaintiff, with her husband, suing derivatively, commenced this action against Retail and the defendants Control Building Services, Inc., and Control Construction Co., Inc. (hereinafter together Control). Control managed and provided maintenance services for the premises. Retail and Control commenced a third-party action against Guy Pratt, Inc. (hereinafter Pratt), which provided snow removal services at the premises. The third-party complaint asserted causes of action for, among other things, common-law and contractual indemnification. The plaintiffs subsequently filed a second amended complaint which asserted causes of action against Pratt.
The Supreme Court properly granted that branch of Pratt's motion which was for summary judgment dismissing the third-party cause of action for common-law indemnification. Pratt established, prima facie, that the injured plaintiff's accident was not due solely to its negligent performance or nonperformance of an act solely within its province ( see Schultz v. Bridgeport & Port Jefferson Steamboat Co., 68 A.D.3d 970, 972, 891 N.Y.S.2d 146). In opposition, Retail and Control failed to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).
However, the Supreme Court should have denied that branch of Pratt's motion which was for summary judgment dismissing the third-party cause of action for contractual indemnification, because Pratt failed to establish, prima facie, that it did not breach the relevant contract by failing to perform one or more of the services for which it was retained ( see Abramowitz v. Home Depot USA, Inc., 79 A.D.3d 675, 677, 912 N.Y.S.2d 639; Baratta v. Home Depot USA, 303 A.D.2d 434, 435, 756 N.Y.S.2d 605).
We decline Retail and Control's request to search the record and award them summary judgment on the third-party cause of action for contractual indemnification.