Opinion
2002-10753.
Decided March 1, 2004.
In an action to recover damages for personal injuries, the third-party defendant, Northern Exhaust Cleaners, appeals from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated October 16, 2002, as denied its motion for summary judgment dismissing the third-party complaint, and the defendant third-party plaintiff Omni Sagamore Hotel cross-appeals, as limited by its brief, from so much of the same order as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.
Barry, McTiernan Moore, New York, N.Y. (Laurel A. Wedinger of counsel), for third-party defendant-appellant-respondent
Northern Exhaust Cleaners, Morris, Duffy, Alonso Faley, LLP, New York, N.Y., (Yolanda L. Himmelberger and Andrea M. Alonso of counsel), for defendant third-party plaintiff-respondent-appellant.
Goldblatt Associates, New York, N.Y. (Kenneth B. Goldblatt of counsel), for plaintiff-respondent.
Before: ANITA R. FLORIO, J.P., NANCY E. SMITH, DANIEL F. LUCIANO and REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
Contrary to the contention of the defendant hotel, material questions of fact exist with respect to whether it created the dangerous, wet condition with its cleaning solution ( see Overton v. Leisure Time Recreation, 280 A.D.2d 655; cf. Breuer v. Wal-Mart Stores, 289 A.D.2d 276; Ryder v. King Kullen Grocery Co., 289 A.D.2d 387; Licatese v. Waldbaums, Inc., 277 A.D.2d 429; Russell v. Meat Farms, 160 A.D.2d 987). Moreover, the Supreme Court providently exercised its discretion in accepting the plaintiff's late submission of Kenneth Deragon's affidavit, dated September 12, 2002 ( see CPLR 2214[c]; 269 Fulton Corp. v. H.A.B. Realty Assocs., 179 A.D.2d 752; cf. Solow v. Liebman, 262 A.D.2d 633; Romeo v. Ben-Soph Food Corp., 146 A.D.2d 688), and this affidavit did not present a feigned issue of fact ( see Nembhard v. Mount Vernon City School Dist. Bd. of Educ., 300 A.D.2d 456; cf. Marcelle v. New York City Tr. Auth., 289 A.D.2d 459; Martin v. W.B. Rest., Inc., 269 A.D.2d 431; Fontana v. Fortunoff, 246 A.D.2d 626).
Contrary to the contention of the third-party defendant Northern Exhaust Cleaners (hereinafter Northern Exhaust), material questions of fact exist with respect to whether the plaintiff's injuries are attributable solely to the negligent performance or nonperformance of an act that was solely within the province of Northern Exhaust, thereby precluding dismissal of the third-party claim of the defendant hotel for common-law indemnification ( see Baratta v. Home Depot USA, 303 A.D.2d 434; Mitchell v. Fiorini Landscape, 284 A.D.2d 313; Murphy v. M.B. Real Estate Dev. Corp., 280 A.D.2d 457).
FLORIO, J.P., SMITH, LUCIANO and RIVERA, JJ., concur.