Diaz v. Eminent Associates, LLC

Appellate Division of the Supreme Court of New York

Diaz v. Eminent Associates, LLC

31 A.D.3d 296, 819 N.Y.S.2d 32

Appellate Division of the Supreme Court of the State of New York·Decided July 13, 2006·Published·Cited by 1 cases

Opinions

Order, Supreme Court, New York County (Rosalyn Richter, J.), entered January 4, 2006, which denied the motion of defendant Eminent Associates (Eminent) for summary judgment dismissing the complaint, or alternatively, for contractual indemnification against defendant Go Pro Sports, affirmed, without costs.

The record discloses issues of fact as to whether Eminent negligently repaired the sidewalk where plaintiff allegedly fell (see Hausser v Giunta, 88 NY2d 449, 452-453 [1996]), and the documentary evidence submitted by Eminent does not conclusively establish that the repair was undertaken after the accident. The dissent’s reliance on the alleged “unequivocal assertion” of Eminent’s property manager that the repair was done some time after September 7, 2001 (i.e., at least four months after the accident), is misplaced. In his affidavit, the manager does not expressly state his knowledge of the actual date of repair, but rather indicates that his recollection had been refreshed that such repair “was within one month of the date (October 7, 2001) of the bill” and, thus, “would not have been prior to September 7, 2001.” Hardly unequivocal, the manager’s statement is clearly predicated on the unsupported assumption that Eminent paid its bills in a timely manner and, on this record, is nothing more than guesswork.

In any event, the evidence of subsequent repair by Eminent raises a factual issue as to whether Eminent assumed responsibility for maintaining the sidewalk (see Esteva v Catsimatidis, 4 AD3d 210 [2004]; DeRoche v Methodist Hosp. of Brooklyn, 249 AD2d 438, 439 [1998]; cf., O’Callaghan v Walsh, 211 AD2d 531, 532 [1995]).

Issues of fact with respect to whether the alleged accident was attributable to negligence by Eminent also preclude summaiy adjudication of Eminent’s claim for contractual indemnification (see e.g. Barraco v First Lenox Terrace Assoc., 25 AD3d 427 [2006]; Tormey v City of New York, 302 AD2d 277, 278 [2003]).

[297]*297We have reviewed the parties’ remaining arguments for affirmative relief and find them unavailing. Concur—Tom, J.P, Saxe, Nardelli and Gonzalez, JJ.

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Order, Supreme Court, New York County (Rosalyn Richter, J.), entered January 4, 2006, which denied the motion of defendant Eminent Associates (Eminent) for summary judgment dismissing the complaint, or alternatively, for contractual indemnification against defendant Go Pro Sports, affirmed, without costs.

The record discloses issues of fact as to whether Eminent negligently repaired the sidewalk where plaintiff allegedly fell (see Hausser v Giunta, 88 NY2d 449, 452-453 [1996]), and the documentary evidence submitted by Eminent does not conclusively establish that the repair was undertaken after the accident. The dissent’s reliance on the alleged “unequivocal assertion” of Eminent’s property manager that the repair was done some time after September 7, 2001 (i.e., at least four months after the accident), is misplaced. In his affidavit, the manager does not expressly state his knowledge of the actual date of repair, but rather indicates that his recollection had been refreshed that such repair “was within one month of the date (October 7, 2001) of the bill” and, thus, “would not have been prior to September 7, 2001.” Hardly unequivocal, the manager’s statement is clearly predicated on the unsupported assumption that Eminent paid its bills in a timely manner and, on this record, is nothing more than guesswork.

In any event, the evidence of subsequent repair by Eminent raises a factual issue as to whether Eminent assumed responsibility for maintaining the sidewalk (see Esteva v Catsimatidis, 4 AD3d 210 [2004]; DeRoche v Methodist Hosp. of Brooklyn, 249 AD2d 438, 439 [1998]; cf., O’Callaghan v Walsh, 211 AD2d 531, 532 [1995]).

Issues of fact with respect to whether the alleged accident was attributable to negligence by Eminent also preclude summaiy adjudication of Eminent’s claim for contractual indemnification (see e.g. Barraco v First Lenox Terrace Assoc., 25 AD3d 427 [2006]; Tormey v City of New York, 302 AD2d 277, 278 [2003]).

[297]*297We have reviewed the parties’ remaining arguments for affirmative relief and find them unavailing. Concur—Tom, J.P, Saxe, Nardelli and Gonzalez, JJ.

Diaz v. Eminent Associates, LLC, 31 A.D.3d 296, 819 N.Y.S.2d 32 (N.Y. Ct. App. 2006).

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