Opinion
153 Index No. 151822/19 Case No. 2022-05183
05-02-2023
176 WEST 87TH STREET OWNERS CORP., Plaintiff-Respondent, v. Matthew GUERCIO et al., Defendants, D & B Engineers and Architects, P.C., Defendant-Appellant.
L'Abbate, Balkan, Colavita & Contini, L.L.P., Melville (Lee Sacket of counsel), for appellant. Axelrod, Fingerhut & Dennis, New York (Osman Dennis of counsel), for respondent.
L'Abbate, Balkan, Colavita & Contini, L.L.P., Melville (Lee Sacket of counsel), for appellant.
Axelrod, Fingerhut & Dennis, New York (Osman Dennis of counsel), for respondent.
Kern, J.P., Oing, Kennedy, Shulman, Higgitt, JJ.
Order, Supreme Court, New York County (Lori Sattler, J.), entered June 30, 2022, which, to the extent appealed from, denied defendant D & B Engineers and Architects, P.C.’s (D & B) motion for summary judgment dismissing the complaint and all cross-claims as against it, and granted defendant John Franco Contractors Inc.’s (Franco) motion for leave to amend its answer to assert a cross-claim for contribution against D & B, unanimously modified, on the law, to grant that portion of D & B's motion for summary judgment dismissing all cross-claims as against it for common law indemnification, and otherwise affirmed, without costs.
The motion court properly denied D & B's motion for summary judgment dismissing the complaint. There are triable issues of fact as to whether D & B assumed a duty to perform work related to the demolition of the kitchen, from where the gas pipe was removed, and whether D & B was in fact involved in such work or the supervision thereof (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).
Given the foregoing, the court also properly denied D & B's motion to the extent that it sought dismissal of the cross-claims against it for contribution (see generally Raquet v. Braun, 90 N.Y.2d 177, 183, 659 N.Y.S.2d 237, 681 N.E.2d 404 [1997] ). However, to the extent any defendant has asserted a cross-claim against D & B for common law indemnification, that cross-claim should have been dismissed as those defendants are not being held vicariously liable (see McCarthy v. Turner Const. Inc., 17 N.Y.3d 369, 377–378, 929 N.Y.S.2d 556, 953 N.E.2d 794 [2011] ["a party cannot obtain common-law indemnification unless it has been held to be vicariously liable without proof of any negligence or actual supervision on its own part"]).
The court providently exercised its discretion in granting Franco's motion for leave to amend its answer to assert a cross-claim for contribution against D & B (see CPLR 3025[b] ); Kocourek v. Booz Allen Hamilton Inc., 85 A.D.3d 502, 504, 925 N.Y.S.2d 51 [1st Dept. 2011] ). Mere delay was insufficient to defeat the motion for leave to amend, and D & B failed to establish prejudice ( Kocourek, 85 A.D.3d at 504, 925 N.Y.S.2d 51 ).