Opinion
6871 6872 Index 303542/14, 8407/14
06-14-2018
Isam MUQATTASH, et al., Plaintiffs–Respondents, v. CHOICE ONE PHARMACY CORP., et al., Defendants–Appellants, NYC Partnership Housing Development Fund Company, Inc., et al., Defendants. Choice One Pharmacy Corp., et al., Third–Party Plaintiffs–Appellants, v. Macintosh Electric Corporation, Third–Party Defendant–Respondent.
Morris Duffy Alonso & Faley, New York (Iryna S. Krauchanka of counsel), for Choice One Pharmacy Corp., appellant. Barry, McTiernan & Moore LLC, New York (David H. Schultz of counsel), for 1550 Realty, LLC, appellant. Sullivan Papain Block McGrath & Cannavo P.C., New York (Brian J. Shoot of counsel), for Isam Muqattash and Alba Muqattash, respondents. Linda A. Stark, New York, for Macintosh Electric Corporation, respondent.
Morris Duffy Alonso & Faley, New York (Iryna S. Krauchanka of counsel), for Choice One Pharmacy Corp., appellant.
Barry, McTiernan & Moore LLC, New York (David H. Schultz of counsel), for 1550 Realty, LLC, appellant.
Sullivan Papain Block McGrath & Cannavo P.C., New York (Brian J. Shoot of counsel), for Isam Muqattash and Alba Muqattash, respondents.
Linda A. Stark, New York, for Macintosh Electric Corporation, respondent.
Acosta, P.J., Manzanet–Daniels, Tom, Mazzarelli, Moulton, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about November 28, 2017, which, insofar as appealed from, denied defendant 1550 Realty, LLC's (1550 Realty) cross motion for summary judgment dismissing the common-law negligence and Labor Law § 200 claims, and on its third-party claim for common-law indemnification as against third-party defendant Macintosh Electric Corporation (Macintosh), and denied defendant Choice One Pharmacy Corp.'s (Choice One) cross motions for summary judgment as untimely, unanimously affirmed, with costs.
The court properly declined to consider Choice One's cross motions for summary judgment since they were filed several months after the applicable deadline and Choice One did not provide good cause for its delay (see Brill v. City of New York, 2 N.Y.3d 648, 652, 781 N.Y.S.2d 261, 814 N.E.2d 431 [2004] ). In any event, these motions were not true "cross motions" as they each sought, at least in part, relief against nonmoving parties. Furthermore, Choice One's cross motions did not raise issues that were "nearly identical" to those raised in the timely initial motions ( Maggio v. 24 W. 57 APF, LLC, 134 A.D.3d 621, 628, 24 N.Y.S.3d 1 [1st Dept. 2015] [internal quotation marks omitted]; Kershaw v. Hospital for Special Surgery, 114 A.D.3d 75, 87–88, 978 N.Y.S.2d 13 [1st Dept. 2013] ).
As to 1550 Realty's cross motion on the common-law negligence and Labor Law § 200 claim, the court properly found that there were issues of fact as to whether 1550 Realty was responsible for creating the dangerous condition, namely the live wire that was responsible for causing harm to the injured plaintiff (see Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d 139, 144, 950 N.Y.S.2d 35 [1st Dept. 2012] ). The evidence showed that, upon taking ownership of the premises, but before entering into a lease with Choice One, 1550 Realty had the drop ceiling and electrical system where the accident occurred installed, and that no one else performed work in the ceiling until the time of the accident. Accordingly, 1550 Realty failed to establish that it did not create the defective condition that later caused the injured plaintiff's accident (see Parietti v. Wal–Mart Stores, Inc., 29 N.Y.3d 1136, 61 N.Y.S.3d 523, 83 N.E.3d 853 [2017] ; A & M E. Broadway LLC v. Hong Kong Supermarket, Inc., 140 A.D.3d 535, 34 N.Y.S.3d 431 [1st Dept. 2016] ).
In light of the issues of fact as to whether 1550 Realty was negligent in causing the accident, its cross motion for summary judgment on its common-law indemnification claim as against Macintosh was properly denied (cf. Guaman v. 1963 Ryer Realty Corp., 127 A.D.3d 454, 456, 8 N.Y.S.3d 40 [1st Dept. 2015] ).