Present: HON. ALLAN L. WINICK, Justice. Defendant(s). Third-Party Plaintiff,



Similar documents
Philadelphia Indemnity Ins. Co. v Hirsch Constr. Corp NY Slip Op 30279(U) February 4, 2013 Supreme Court, New York County Docket Number:

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY

Tkaczyk v 337 E. 62nd LLC 2015 NY Slip Op 31522(U) August 11, 2015 Supreme Court, New York County Docket Number: /2013 Judge: Cynthia S.

SUPREME COURT - STATE OF NEW YORK. PRESENT: HON. PETER B. SKELOS, Justice. TRIALIIAS PART 25 NASSAU COUNTY

Jones v Granite Constr. Northeast, Inc NY Slip Op 31434(U) May 23, 2011 Sup Ct, Queens County Docket Number: 12819/09 Judge: James J.

How To Get A Court To Dismiss A Dental Malpractice Action

Financial Pacific Leasing, LLC v Bloch Group, LLC 2014 NY Slip Op 30891(U) April 4, 2014 Sup Ct, New York County Docket Number: /13 Judge:

Davis & Warshow, Inc. v Nu Citi Plumbing, Inc NY Slip Op 33816(U) August 16, 2011 Sup Ct, Queens County Docket Number: 26913/10 Judge: Robert

Novas v Raimondo Motor Cars, Inc NY Slip Op 31170(U) April 29, 2011 Supreme Court, Queens County Docket Number: 28135/2007 Judge: Robert J.

a-ax

NEW YORK SUPREME COURT - QUEENS COUNTY

Plaintiffs, Defendant.

Hong Suk Lee v Biton 2013 NY Slip Op 30666(U) April 2, 2013 Supreme Court, Queens County Docket Number: /2011 Judge: Robert J.

Liberty Surplus Ins. Corp. v Burlington Ins. Co NY Slip Op 30564(U) April 14, 2015 Sup Ct, New York County Docket Number: /2012 Judge:

Palmer v 1520, LLC 2014 NY Slip Op 32644(U) September 19, 2014 Supreme Court, Bronx County Docket Number: /2011 Judge: Lucindo Suarez Cases

New Hampshire Ins. Co. v Adami Restoration, Inc NY Slip Op 31412(U) June 19, 2013 Supreme Court, New York County Docket Number: /08

Merchant Store Inc. v Schloesser 2012 NY Slip Op 31928(U) July 17, 2012 Supreme Court, Suffolk County Docket Number: Judge: Emily Pines

Structure Tone, Inc. v Travelers Indem. Co NY Slip Op 30706(U) April 29, 2015 Supreme Court, New York County Docket Number: /2014 Judge:

Bovis Lend Lease LMB, Inc. v Aon Risk Servs. Northeast, Inc NY Slip Op 32514(U) September 26, 2014 Supreme Court, New York County Docket

Vargas v City of New York 2016 NY Slip Op 30070(U) January 15, 2016 Supreme Court, New York County Docket Number: /13 Judge: Michael D.

Sinanaj v City of New York 2014 NY Slip Op 32271(U) August 22, 2014 Sup Ct, New York County Docket Number: /08 Judge: Manuel J.

Edward Ramos. Index Number : Cross-Motion: 0 Yes n No MILLER, SETH J.$C PART53 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY

SUPREME COURT - STATE OF NEW YORK CIVIL TERM - PART TT-34 - QUEENS COUNTY COURT SQUARE, LONG ISLAND CITY, N.Y

Curillo v Tiago Holdings, LLC 2015 NY Slip Op 32406(U) November 19, 2015 Supreme Court, Bronx County Docket Number: /2012 Judge: Betty Owen

Naughton v City of New York 2010 NY Slip Op 30367(U) February 25, 2010 Supreme Court, New York County Docket Number: /05 Judge: Martin Shulman

Santa v Azure Nightclub Inc NY Slip Op 30175(U) January 5, 2015 Supreme Court, Bronx County Docket Number: Judge: Howard H.

Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY PRESENT: HON. ORIN R. KITZES PART 17 Justice

Notice of Motion Affirmation in Opposition Reply Affirmation in Further Support of Defendant s Motion for Summary Judgment

Verizon New York, Inc. v Tully Constr. Co., Inc NY Slip Op 32545(U) October 11, 2013 Sup Ct, New York County Docket Number: /08 Judge:

HON. GEOFFREY J. O CONNELL Justice. Plaintiff(s), Defendant(s). MOTION SEQ. No. 11

Gass v Jennifer C.E. Ajah & Assoc., P.C NY Slip Op 30318(U) January 23, 2014 Supr Ct, Queens County Docket Number: 13160/10 Judge: Janice A.

Everyday Group LLC v GW Supermarket of N. Blvd., Inc NY Slip Op 31196(U) April 25, 2011 Sup Ct, Queens County Docket Number: 34162/09 Judge:

SUPREME COURT, CIVIL BRANCH New York County 60 Centre Street, New York, N.Y HELP CENTER Room How to Answer a Motion

In the Court of Appeals of Georgia

Leone v State Farm Fire & Cas. Co NY Slip Op 32156(U) September 4, 2013 Supreme Court, Suffolk County Docket Number: Judge: Hector

Justice TRIAL/IAS PART 5 NASSAU COUNTY

Great Northern Ins. Co. v Access Self Storage 2011 NY Slip Op 31514(U) June 7, 2011 Supreme Court, New York County Docket Number: /2010 Judge:

Leo v City of New York 2014 NY Slip Op 32270(U) August 22, 2014 Sup Ct, New York County Docket Number: /08 Judge: Manuel J. Mendez Cases posted

COUNTY OF NASSAU. Justice. Defendants.

Hatton v Aliazzo McCloskey & Gonzalez, LLP 2013 NY Slip Op 32910(U) October 9, 2013 Supreme Court, Queens County Docket Number: 14630/12 Judge:

The following papers read on this motion: Motion Sequence #001. Reply Memorandum of Law X. Affirmation in Opposition XX Memorandum of Law XX

Gonzalez v Vanguard Constr. & Dev. Co., Inc NY Slip Op 30289(U) January 23, 2014 Sup Ct, New York County Docket Number: /2011 Judge: Joan

Buchanan v Flushing Manor Nursing Home Inc NY Slip Op 30401(U) February 19, 2014 Supreme Court, Queens County Docket Number: 33723/09 Judge:

INEX No /06 SHORT FORM ORDER HON. STEPHEN A. BUCARI

Case: 1:04-cv Document #: 134 Filed: 02/01/07 Page 1 of 10 PageID #:<pageid>

Sullivan v Lehigh Cement Co NY Slip Op 30256(U) January 27, 2014 Supreme Court, New York County Docket Number: /10 Judge: Louis B.

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX

United States Life Ins. Co. in the City of N.Y. v Menche 2013 NY Slip Op 30453(U) February 28, 2013 Supreme Court, New York County Docket Number:

Case 1:10-cv NMG Document 38 Filed 06/15/11 Page 1 of 9. United States District Court District of Massachusetts MEMORANDUM & ORDER

In the Indiana Supreme Court

NYU-Hospital for Joint Diseases v American Intl. Group, Inc NY Slip Op 30730(U) March 26, 2010 Supreme Court, Nassau County Docket Number:

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO CA COA

-N.CW' YURK SUPREME COURT - COUNTY OF BRONX. PART)(' l\ ~----~-----~ ~ ~--){.JlJSt~, f:)r~~rt.

Moyse v Gruber 2014 NY Slip Op 30683(U) March 12, 2014 Supreme Court, Suffolk County Docket Number: Judge: Joseph C. Pastoressa Cases posted

Austin v Jewish Home & Hosp./Bronx Div NY Slip Op 30581(U) March 12, 2015 Sup Ct, Bronx County Docket Number: /10 Judge: Stanley B.

Perrotte v New York City Tr. Auth NY Slip Op 30079(U) January 8, 2008 Supreme Court, Queens County Docket Number: /2007 Judge: Howard G.

SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. 480A.08, subd. 3 (2012).

NEW YORK SUPREME COURT - QUEENS COUNTY

Friedman v A.O. Smith Wter Prod. Co NY Slip Op 30886(U) April 3, 2014 Sup Ct, New York County Docket Number: /12 Judge: Sherry Klein

835 Ave. of the Americas, L.P. v Breeze Natl., Inc NY Slip Op 32149(U) August 11, 2010 Supreme Court, New York County Docket Number: /09

Writ of Mandamus is Conditionally Granted; Opinion Filed December 3, In The Court of Appeals Fifth District of Texas at Dallas

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

Defendants. Notice of Motion/Order to Show Cause...1 Cross Motions/Answering Affidavits... 2 Reply Affidavits... 3

Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY. PRESENT: HON. ORIN R. KITZES PART 17 Justice ZHORIK YUSUPOV,

Matter of Rotunda Realty Corp. v Tax Commn. of the City of N.Y NY Slip Op 31205(U) June 27, 2016 Supreme Court, New York County Docket Number:

IN THE NEBRASKA COURT OF APPEALS. MEMORANDUM OPINION AND JUDGMENT ON APPEAL (Memorandum Web Opinion)

The Truth About CPLR Article 16

IN THE COURT OF APPEALS OF INDIANA

DISTRICT OF COLUMBIA COURT OF APPEALS. No. 03-CV Appeal from the Superior Court of the District of Columbia (CA )

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

IN COURT OF APPEALS DECISION DATED AND RELEASED NOTICE OCTOBER 7, No FT KATHLEEN K. WARD AND CHARLES W. WARD, PLAINTIFFS-APPELLANTS,

Russack v Russack 2014 NY Slip Op 30816(U) March 28, 2014 Sup Ct, New York County Docket Number: /2012 Judge: Shirley Werner Kornreich Cases

to add a number of affirmative defenses, including an allegation that Henry s claim was barred

Hoe Suk Nam v Schossig 2015 NY Slip Op 31721(U) September 8, 2015 Supreme Court, Queens County Docket Number: 11142/2013 Judge: Robert J.

IN THE SUPREME COURT OF MISSISSIPPI NO IA SCT

IN THE COURT OF COMMON PLEAS OF THE STATE OF DELAWARE IN AND FOR SUSSEX COUNTY

Was the plaintiff [injured] [damaged] by the defendant s negligent. On this issue the burden of proof is on the plaintiff.

NORTH SHORE ORTHOPEDICS, et ale

Ludwig's Drug Store, Inc. v Brooklyn Events Ctr., LLC 2015 NY Slip Op 30763(U) May 8, 2015 Supreme Court, New York County Docket Number: /2014

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR KENT COUNTY

TMR Bayhead Secs. LLC v Aegis Texas Venture Fund II, LP 2009 NY Slip Op 33332(U) September 2, 2009 Supreme Court, New York County Docket Number:

SUPREME COURT OF MISSOURI en banc

Case 1:07-cv MJW-BNB Document 51 Filed 08/21/2008 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Preliminary Statement. This Memorandum of Law, along with the accompanying Affidavits, are respectfully

STATE OF MICHIGAN COURT OF APPEALS

Gladstein & Isaac v Philadelphia Indem. Ins. Co NY Slip Op 32827(U) November 30, 2009 Supreme Court, New York County Docket Number: /07

Young v New York & Presbyterian Hosp NY Slip Op 30066(U) January 17, 2015 Supreme Court, New York County Docket Number: /13 Judge: Anil

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION-CIVIL

PS Fin. LLC v Parker, Waichman Alonso, LLP 2010 NY Slip Op 31727(U) June 28, 2010 Sup Ct, Richmond County Docket Number: /10 Judge: Joseph J.

SUPREME COURT - STATE OF NEW YORK COMMERCIAL DIVISION TRIAL TERM, PART 44 SUFFOLK COUNTY

Empire Purveyors, Inc. v Brief Justice Carmen & Kleiman, LLP 2009 NY Slip Op 32752(U) November 17, 2009 Supreme Court, New York County Docket Number:

The following papers numbered 1 to 40 on this motion: Papers

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE, SC SUPERIOR COURT

HSBC Bank USA v Chun 2012 NY Slip Op 33400(U) March 26, 2012 Sup Ct, New York County Docket Number: /2010E Judge: Paul G. Feinman Cases posted

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION

Matter of Gomez v Bratton 2015 NY Slip Op 31097(U) June 12, 2015 Supreme Court, New York County Docket Number: /14 Judge: Paul Wooten Cases

Attorney for defendants Kasman P.O. Box 1291

In the Missouri Court of Appeals Eastern District

UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF VIRGINIA Richmond Division

Transcription:

?HORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. ALLAN L. WINICK, Justice ROBERT WALKER, JR., Plaintiff, TRIAUIAS, PART 7 NASSAU COUNTY MOTION DATE: May II,2001 MOTION SEQUENCE: 003,004 INDEX NO. 16349/94 CALDOR, INC., TIBBETS ASSOCIATES and JEFFREY M. BROWN ASSOCIATES, INC., Defendant(s). JEFFREY M. BROWN ASSOCIATES, INC., Plaintiff, ECONOMY PLUMBING AND HEATING, CO., INC. Defendant. Third-Party Plaintiff, CMC ELECTRICAL CONTRACTING MAINTENANCE CORPORATION, & Defendants ROBERT WALKER, JR.,.

The following papers read on this motion: Notice of Motion/ Order to Show Cause Answering Affidavits Replying Affidavits Briefs: Plaintiffs/Petitioners Defendants/Respondent s Motion by defendant Tibbets Associates pursuant to CPLR 3212 for summary judgment is denied. Cross-motion by defendant Economy Plumbing and Heating Co., Inc. pursuant to CPLR 3212 for summary judgment is denied. In this action for damages for personal injury, plaintiff Robert Walker Jr. seeks to. recover from various contractors and subcontractors who contracted to perform work renovating a Caldor store in the Bronx, New York for injuries sustained on September 2, 1993. Walker, an employee of subcontractor CMC Electrical Contracting & Maintenance Corp. (CMC), was going to a subbasement where he was performing switching work. As he descended an open metal staircase similar to a fire escape, which was attached to the wall on only one side, the third step collapsed under his foot causing him to fall. It is claimed, inter alia, that on the same day and prior to plaintiff s fall, certain steamfitters had bounced a hot water heater weighing over five hundred pounds down the stairs. Defendant Tibbets Associates (Tibbets) seeks summary judgment averring that it was not responsible for the staircase or the hot water heater, did not own the premises, or create the dangerous condition. Neither, Tibbets claims, did it have a duty to maintain the staircase or hot water heater. Defendant Economy Plumbing and Heating Co. (Economy) seeks summary judgment averring that although its employees transported the hot water heater down the staircase which later collapsed under plaintiff, a jury would have to speculate to reach a conclusion that such act caused plaintiff s injury. 2

Plaintiff opposes both motions, and with respect to the main motion avers that Tibbets admitted at deposition that its employees and agents carried heavy equipment and material down the staircase. Plaintiff alleges that Tibbets also subcontracted demolition work consisting of breaking down walls, breaking down ceilings, concrete supports, bases... in the subbasement. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case * * * Failure to makesuch a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853). Tibbets has failed to meet its burden of proof that it had no part in carrying heavy equipment down the stairs which eventually collapsed under plaintiff. William Tibbet owner of Tibbet Associates testified at deposition that he hired several subcontractors to work on the Caldor project including [rliggers, plumbers, electricians, demolition service, [and] oil burners. Tibbet was asked about his employees use of heavy equipment on the staircase where plaintiff fell. He testified as follows: Q. Did you at any time in your visits to the job site view either the employees who were subcontractors ofyours orjeffrey Brown s carrying items up and down the stairs? A. Yes. Q. How did they do that; in what manner? A. If it was heavy, it was on dollies. If it wasn t heavy, they could carry it. 3.

Q. Wha t ite m s did they carry on the dollies? Large valves, mechanical pipes, boxes of materials, things of that nature. Things that were too heavy to carry. Q. Do you know from what compan ies those employees were? Q. No, I do not. None of them were from your - - They could have been... Con trary to defendant Tibbets contentions on this motion, it has not established as a ma tter of law that its e mp loyees or agents had nothing to do with the stairs where plaintiff fell. W hile the quoted testi mony indicates that W illia m T ibbets did not know which emp loyees specifically carried which pieces of heavy equip ment, the italicized portion of his testi mony does provide evidence that Tibbets saw his employees and those of defendant Jeffrey M. Brown Associates carrying equipment up and down the stairs, and that his e mp loyees could have been connected with the use of dollies and heavy equ ip ment on those stairs. Accordingly Tibbets cannot establish as a ma tter of law that the conduct of its e mp loyees and agents was not culpable, or that it did not contribute to the happening of the accident. W ith respect to defendant Economy Plumbing and Heating Co., Inc., plaintiff deposition testi mony indicates that Econo m y s emp loyees bounced a twelve foot long hot water heater in excess of five hundred pounds down the stairs the same day plaintiff fell. Economy avers that a jury would have to speculate to conclude that the hot water heater had anything to do with plaintiff s accident. Such contention approaches the frivolous. The evidence per m its a fair inference that the heavy equip ment, large valves, 4

mechanical pipes, boxes of materials needing dollies to be moved, and a five hundred pound water heater, all contributed to weakening the joints of the metal staircase leading to the eventual collapse of the third step. Whether defendants use of the stairs in this manner was negligent or a proximate cause of plaintiff s accident presents a factual issue not susceptible to summary judgment. The motion and cross-motion are denied. This constitutes the order of the court. Dated: June 26,200l Allan L. Winick J.S.C. 'JUN 28 NASSAU COUNT Y CQUNTY CLERKS OFFICE 5,