| Baldwin v Windcrest Riverhead, LLC |
| 2014 NY Slip Op 08797 |
| Decided on December 17, 2014 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on December 17, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
THOMAS A. DICKERSON
SANDRA L. SGROI
JEFFREY A. COHEN, JJ.
2013-02741 ON MOTION
(Index No. 35205/06)
v
Windcrest Riverhead, LLC, et al., defendants third-party plaintiffs-respondents, et al., defendants; Weather Wise Contracting, Inc., third-party defendant-appellant (and another title).
Cascone & Kluepfel, LLP, Garden City, N.Y. (Michael T. Reagan, and Kimberly A. Von Arx of counsel), for third-party defendant-appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (Joseph A. H. McGovern and John D. Morio of counsel), for defendants third-party plaintiffs-respondents. Ferro, Kuba, Mangano, Skylar, P.C., Hauppauge, N.Y. (Ken Mangano and Rebecca Fortney of counsel), for plaintiff.
DECISION & ORDER
Motion by the plaintiff, in effect, to amend a decision and order of this Court dated June 25, 2014 (Baldwin v Windcrest Riverhead, LLC, 118 AD3d 929), which determined an appeal from an order of the Supreme Court, Suffolk County, dated January 10, 2013. Motion by the defendants third-party plaintiffs-respondents for leave to reargue the appeal.
Upon the papers filed in support of the motions and the papers filed in opposition thereto, it is
ORDERED that the motion for leave to reargue the appeal is denied; and it is further,
ORDERED that the motion, in effect, to amend the decision and order of this Court dated June 25, 2014, is granted, the decision and order of this Court dated June 25, 2014, is recalled and vacated, and the following decision and order is substituted therefor:
In an action to recover damages for personal injuries, the third-party defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Martin, J.), dated January 10, 2013, as denied those branches of its motion which were for summary judgment dismissing the third-party causes of action for common-law and contractual indemnification, granted that branch of the motion of the defendants third-party plaintiffs which was for conditional summary judgment on their third-party cause of action for contractual indemnification, and, in effect, granted that branch of the motion of the defendants third-party plaintiffs which was for conditional summary judgment on their third-party cause of action for common-law indemnification.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the third-party defendant's motion which were for summary judgment dismissing the third-party causes of action for common-law and contractual indemnification are granted, and those branches of the motion of the defendants third-party plaintiffs which were for conditional summary judgment on their third-party causes of action for contractual indemnification and common-law indemnification are denied.
The third-party defendant-appellant established its prima facie entitlement to judgment as a matter of law dismissing the third-party causes of action for common-law and contractual indemnification by submitting, inter alia, a transcript of the deposition testimony of the plaintiff, which showed that the plaintiff merely speculated that the ice, snow, and water on the interior staircase upon which he allegedly slipped and fell entered the house through the soffits installed by the third-party defendant-appellant (see Kudrina v 82—04 Lefferts Tenants Corp., 110 AD3d 963, 964; Hunt v Meyers, 63 AD3d 685; Ludin v Crestwood Country Day School, Inc., 36 AD3d 866). In opposition to the motion, the defendants third-party plaintiffs submitted, inter alia, the affidavit of an expert witness who opined, in pertinent part, that if the soffits were left uncovered and snow accumulated in them, wind could have blown the snow into the house and "it is possible for snow to have fallen from the soffits to the interior stairway." Even if the soffits were defective, the expert's conclusion linking the alleged defects to the plaintiff's fall was purely speculative and failed to raise a triable issue of fact (see Litvinoff v Kaur, 102 AD3d 928; Knudsen v Mamaroneck Post No. 90, Dept. of N.Y.-Am. Legion, Inc., 94 AD3d 1058; Zalot v Zieba, 81 AD3d 935; Ghany v Hossain, 65 AD3d 517). Accordingly, the Supreme Court erred in denying those branches of the third-party defendant-appellant's motion which were for summary judgment dismissing the third-party causes of action for common-law and contractual indemnification, in granting that branch of the cross motion of the defendants third-party plaintiffs which was for conditional summary judgment on their third-party cause of action for contractual indemnification, and, in effect, granting that branch of the cross motion of the defendants third-party plaintiffs which was for conditional summary judgment on their third-party cause of action for common-law indemnification.
In light of the foregoing, we do not reach the appellant's remaining contentions.
MASTRO, J.P., DICKERSON, SGROI and COHEN, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court