Cummings v. Arde Realty Corp.

Appellate Division of the Supreme Court of New York

Cummings v. Arde Realty Corp.

154 A.D.2d 321, 546 N.Y.S.2d 610, 1989 N.Y. App. Div. LEXIS 13591

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 31, 1989

StatusPublished

Cited by5 cases

This text of 154 A.D.2d 321 (Cummings v. Arde Realty Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cummings v. Arde Realty Corp., 154 A.D.2d 321, 546 N.Y.S.2d 610, 1989 N.Y. App. Div. LEXIS 13591 (N.Y. Ct. App. 1989).

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Opinion

— Appeal from an order of the Supreme Court, New York County (David Edwards, Jr., J.), entered December 29, 1988, deemed an appeal from a judgment of said court, entered April 5, 1989, which granted the motion of third-party defendant Anton Waldman Associates, Inc., sued herein as Anton Wallman Trucking, pursuant to CPLR 3212, for summary judgment dismissing the third-party complaint of Arde Realty Corporation, N. V. and Ketrec Management Corporation, unanimously affirmed, with costs.

The court below properly granted the motion by third-party defendant, plaintiff’s employer, for summary judgment dismissing the third-party complaint, asserting claims for indemnification and contribution, brought by owners of the loading dock where plaintiff slipped and fell from a ramp while making a delivery. Third-party plaintiffs’ conclusory claim that plaintiff’s employer failed to properly train, instruct or direct its employee in the performance of this work in a proper and safe manner was insufficient, as a matter of law, to defeat the motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 560). Plaintiff’s employer had no duty to train, instruct or direct its employee in the common and ordinary activity, previously performed many times by plaintiff, of walking up a ramp (Souffrant v Quality Wholesale Veal Center, 135 AD2d 398, 400; Dupper v Conrail, 120 AD2d 638, 640-641). This is all the more true where examinations before trial established that the proximate cause of plaintiff’s fall was the presence of a slippery foreign substance on the ramp.

Although an appeal was taken from the order granting summary judgment entered December 29, 1988, but not the subsequent judgment entered April 5, 1989, implementing that order, we have, in the interest of judicial economy, deemed the appeal from the order to be an appeal from the subsequent judgment in which the order was subsumed, and have considered the appeal on the merits (Chase Manhattan Bank v Roberts & Roberts, 63 AD2d 566, 567; National Bank v [322]*322Kory, 63 AD2d 579, 580). Concur — Kupferman, J. P., Carro, Asch, Rosenberger and Smith, JJ.

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— Appeal from an order of the Supreme Court, New York County (David Edwards, Jr., J.), entered December 29, 1988, deemed an appeal from a judgment of said court, entered April 5, 1989, which granted the motion of third-party defendant Anton Waldman Associates, Inc., sued herein as Anton Wallman Trucking, pursuant to CPLR 3212, for summary judgment dismissing the third-party complaint of Arde Realty Corporation, N. V. and Ketrec Management Corporation, unanimously affirmed, with costs.

The court below properly granted the motion by third-party defendant, plaintiff’s employer, for summary judgment dismissing the third-party complaint, asserting claims for indemnification and contribution, brought by owners of the loading dock where plaintiff slipped and fell from a ramp while making a delivery. Third-party plaintiffs’ conclusory claim that plaintiff’s employer failed to properly train, instruct or direct its employee in the performance of this work in a proper and safe manner was insufficient, as a matter of law, to defeat the motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 560). Plaintiff’s employer had no duty to train, instruct or direct its employee in the common and ordinary activity, previously performed many times by plaintiff, of walking up a ramp (Souffrant v Quality Wholesale Veal Center, 135 AD2d 398, 400; Dupper v Conrail, 120 AD2d 638, 640-641). This is all the more true where examinations before trial established that the proximate cause of plaintiff’s fall was the presence of a slippery foreign substance on the ramp.

Although an appeal was taken from the order granting summary judgment entered December 29, 1988, but not the subsequent judgment entered April 5, 1989, implementing that order, we have, in the interest of judicial economy, deemed the appeal from the order to be an appeal from the subsequent judgment in which the order was subsumed, and have considered the appeal on the merits (Chase Manhattan Bank v Roberts & Roberts, 63 AD2d 566, 567; National Bank v [322]*322Kory, 63 AD2d 579, 580). Concur — Kupferman, J. P., Carro, Asch, Rosenberger and Smith, JJ.

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154 A.D.2d 321, 546 N.Y.S.2d 610, 1989 N.Y. App. Div. LEXIS 13591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cummings-v-arde-realty-corp-nyappdiv-1989.

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