Opinion
13193 Index No. 157227/15 595006/16 Case No. 2020-02796
02-23-2021
Carl H.R. NESTENBORG, Plaintiff, v. STANDARD INTERNATIONAL MANAGEMENT LLC, et al., Defendants. Standard International Management LLC, et al., Third-Party Plaintiffs, v. Pavarini McGovern, LLC, Third-Party Defendant-Respondent. Pavarini McGovern, LLC, Second Third-Party Plaintiff-Respondent, v. J.E.S. Plumbing & Heating Corp., Second Third-Party Defendant-Appellant.
Milber Makris Plousadis & Seiden, LLP, White Plains (Corinne M. Scotti of counsel), for appellant. Barry McTiernan & Moore LLC, New York (Laurel A. Wedinger of counsel), for respondent.
Milber Makris Plousadis & Seiden, LLP, White Plains (Corinne M. Scotti of counsel), for appellant.
Barry McTiernan & Moore LLC, New York (Laurel A. Wedinger of counsel), for respondent.
Kapnick, J.P., Webber, Mazzarelli, Oing, JJ.
Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered on or about May 27, 2020, which, to the extent appealed from as limited by the briefs, denied second third-party defendant's motion for summary judgment dismissing the second third-party complaint, unanimously affirmed, without costs.
Second third-party defendant J.E.S. Plumbing & Heating Corporation failed to establish prima facie that it did not launch a force or instrument of harm in its installation of a bathroom sink in a guestroom at defendants' property, the Standard Hotel, during its construction, or that plaintiff's injuries, sustained when he leaned against the sink and it fell off the wall, did not arise out of the performance of its work. Hence, the motion court properly denied summary judgment dismissing the second third party complaint (see generally Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ; McDowell v. Xand Holdings, LLC, 172 A.D.3d 547, 98 N.Y.S.3d 746 [1st Dept. 2019] ; Melendez v. City of New York, 182 A.D.3d 430, 119 N.Y.S.3d 862 [1st Dept. 2020] ). The crux of J.E.S.'s argument before the motion court, that second third-party plaintiff Pavarini McGovern LLC could not establish a prima facie case in negligence against it, misapprehends a summary judgment movant's burden (see Artalyan, Inc. v. Kitridge Realty Co., Inc., 79 A.D.3d 546, 547, 912 N.Y.S.2d 400 [1st Dept. 2010] ; Torres v. Merrill Lynch Purch., 95 A.D.3d 741, 742, 945 N.Y.S.2d 78 [1st Dept. 2012] ; cf. Mikenshina v. Tishman Constr. Corp., 187 A.D.3d 546, 130 N.Y.S.3d 656 [1st Dept. 2020] ; Hinton v. City of New York, 73 A.D.3d 407, 407–408, 901 N.Y.S.2d 21 [1st Dept. 2010], lv denied 15 N.Y.3d 715, 2010 WL 5110085 [2010] ). Moreover, a summary judgment movant cannot satisfy its burden "by pointing to perceived gaps in the proof" ( Vazquez v. 3M Co., 177 A.D.3d 428, 429, 113 N.Y.S.3d 41 [1st Dept. 2019] ; Koulermos v. A.O. Smith Water Prods., 137 A.D.3d 575, 27 N.Y.S.3d 157 [1st Dept. 2016] ).
Even if J.E.S. had satisfied its initial burden, triable issues were raised by, among other things, Pavarini's expert affidavit supplied in opposition, in which its engineer opined that, "[i]f a [sink's] wall mount bearing less than the specified 250 pound-load cracks or fails[,] it was improperly installed or defective," given evidence that plaintiff weighed only 187 pounds at the time of his injuries (see Ocampo v. Abetta Boiler & Welding Serv., Inc., 33 A.D.3d 332, 333, 822 N.Y.S.2d 52 [1st Dept. 2006] ). Viewing the facts in a light most favorable to the nonmoving party, the motion court properly denied summary dismissal of the second third-party complaint (see Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 340, 937 N.Y.S.2d 157, 960 N.E.2d 948 [2011] ; Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012] ; McDowell v. Xand Holdings, LLC, 172 A.D.3d at 547, 98 N.Y.S.3d 746 ).
We have considered the remaining contentions, and find them unavailing.