Wilson v. City of New York

Appellate Division of the Supreme Court of New York

Wilson v. City of New York

278 A.D.2d 410, 718 N.Y.S.2d 625, 2000 N.Y. App. Div. LEXIS 13245

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

DecidedDecember 18, 2000

StatusPublished

This text of 278 A.D.2d 410 (Wilson v. City of New York) 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

Wilson v. City of New York, 278 A.D.2d 410, 718 N.Y.S.2d 625, 2000 N.Y. App. Div. LEXIS 13245 (N.Y. Ct. App. 2000).

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Opinion

In an action to recover damages for personal injuries, etc., the third-party defendant Jo-Ann McLean, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Taylor, J.), dated January 3, 2000, as denied its motion for summary judgment dismissing the third-party complaint insofar as asserted against it.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly determined that the appellant did not establish its entitlement to judgment as a matter of law dismissing the third-party complaint insofar as asserted against it. The appellant failed in the first instance to “demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324; see, St. Clair v City of New York, 266 AD2d 277). The testimony of various parties at their examinations before trial demonstrates that the appellant may have had actual or constructive authority to supervise the injured plaintiff’s work on the scaffold from which he fell (see, Russin v Picciano & Son, 54 NY2d 311; Currie v Scott Contr. Corp., 203 AD2d 825). Similarly, issues of fact preclude summary judgment dismissing the cause of action for contractual indemnification, as there has been no finding that the defendant third-party plaintiff, G. Penza & Sons, Inc., was negligent (see, General Obligations Law § 5-322.1; Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786). Finally, the appellant failed to establish its entitlement to summary judgment dismissing the third-party plaintiffs cause of action to re[411]*411cover damages for the appellant’s failure to secure insurance coverage. The appellant did not establish prima facie that it had, in fact, procured the policies of insurance required by the contract. O’Brien, J. P., Santucci, H. Miller and Schmidt, JJ., concur.

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In an action to recover damages for personal injuries, etc., the third-party defendant Jo-Ann McLean, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Taylor, J.), dated January 3, 2000, as denied its motion for summary judgment dismissing the third-party complaint insofar as asserted against it.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly determined that the appellant did not establish its entitlement to judgment as a matter of law dismissing the third-party complaint insofar as asserted against it. The appellant failed in the first instance to “demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324; see, St. Clair v City of New York, 266 AD2d 277). The testimony of various parties at their examinations before trial demonstrates that the appellant may have had actual or constructive authority to supervise the injured plaintiff’s work on the scaffold from which he fell (see, Russin v Picciano & Son, 54 NY2d 311; Currie v Scott Contr. Corp., 203 AD2d 825). Similarly, issues of fact preclude summary judgment dismissing the cause of action for contractual indemnification, as there has been no finding that the defendant third-party plaintiff, G. Penza & Sons, Inc., was negligent (see, General Obligations Law § 5-322.1; Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786). Finally, the appellant failed to establish its entitlement to summary judgment dismissing the third-party plaintiffs cause of action to re[411]*411cover damages for the appellant’s failure to secure insurance coverage. The appellant did not establish prima facie that it had, in fact, procured the policies of insurance required by the contract. O’Brien, J. P., Santucci, H. Miller and Schmidt, JJ., concur.

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Bluebook (online)

278 A.D.2d 410, 718 N.Y.S.2d 625, 2000 N.Y. App. Div. LEXIS 13245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-city-of-new-york-nyappdiv-2000.

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