Opinion
14986 Index No. 31657/18E Case No. 2021–02195
01-06-2022
Shaiqueen UPSON, Plaintiff, v. OLIVEIRA CONTRACTING INC., Defendant-Appellant, Metro Paving LLC, Defendant–Respondent.
Kerley, Walsh, Matera & Cinquemani, P.C., Seaford (Lauren B. Bristol of counsel), for appellant. Bartlett LLP, Central Islip (Robert G. Vizza of counsel), for respondent.
Kerley, Walsh, Matera & Cinquemani, P.C., Seaford (Lauren B. Bristol of counsel), for appellant.
Bartlett LLP, Central Islip (Robert G. Vizza of counsel), for respondent.
Kern, J.P., Mazzarelli, Gesmer, Gonza´lez, Higgitt, JJ.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about December 11, 2020, which, to the extent appealed from as limited by the briefs, granted the motion of defendant Metro Paving LLC (Metro) for summary judgment dismissing the complaint and all cross claims as against it, and denied so much of the motion of defendant Oliveira Contracting, Inc. (Oliveira) for summary judgment on its contractual indemnification cross claim against Metro, unanimously affirmed, without costs.
The records of and witness affidavits from officers and employees of both Metro and Oliveira establish that Metro did not perform any work at the accident site until five days after plaintiff fell. Thus, summary judgment was properly granted to it (see Mironov v. Memorial Hosp. for Cancer & Allied Diseases, 192 A.D.3d 514, 140 N.Y.S.3d 415 [1st Dept. 2021] ; Young v. Associated Blind Hous. Dev. Fund Corp., 172 A.D.3d 407, 97 N.Y.S.3d 847 [1st Dept. 2019] ; Amini v. Arena Constr. Co., Inc., 110 A.D.3d 414, 972 N.Y.S.2d 236 [1st Dept. 2013] ). Moreover, since plaintiff's accident did not arise out of Metro's work, the indemnity provision in its contract with Oliveira was not triggered, warranting dismissal of that claim as well (see Morera v. New York City Transit Auth., 189 A.D.3d 630, 134 N.Y.S.3d 706 [1st Dept. 2020] ; Cohen v. Rockefeller Ctr., Inc., 292 A.D.2d 151, 744 N.Y.S.2d 1 [1st Dept. 2002] ).