Benn v. Beacon Capital Partners, LLC , 2021 NY Slip Op 02356 ( 2021 )

Benn v Beacon Capital Partners, LLC (2021 NY Slip Op 02356)

Benn v Beacon Capital Partners, LLC

2021 NY Slip Op 02356

Decided on April 20, 2021

Appellate Division, First 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 and Entered: April 20, 2021
Before: Webber, J.P., Kern, Oing, González, JJ.

Index No. 162065/14, 595147/15, 595390/16, 595524/17 Appeal No. 13609 Case No. 2020-02821

[*1]Michael Benn, Plaintiff,

v

Beacon Capital Partners, LLC, et al., Defendants. [A Third-Party Action]



Beacon Capital Partners, LLC, et al., Second Third-Party Plaintiffs-Respondents,

v

Metropolitan Enterprises, Inc., Second Third-Party Defendant-Appellant. [And a Third Third-Party Action]

Gartner + Bloom, P.C., New York (Narriman Subrati of counsel), for appellant.

London Fischer LLP, New York (Kyle T. McEwen of counsel), for respondents.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered December 27, 2019, which, to the extent appealed from as limited by the briefs, denied second third-party defendant's (Metropolitan) motion for summary judgment dismissing the second third-party complaint, unanimously affirmed, without costs.

Issues of fact as to whether Metropolitan owned or installed the ladder from which plaintiff fell and whether it failed to construct a staircase tower as provided for in the relevant subcontract preclude summary judgment dismissing the second third-party claims for contractual and common-law indemnification and contribution (see XX v Dunwell El. Elec. Indus., Inc., 188 AD3d 443, 446-447 [1st Dept 2020]; Farrugia v 1440 Broadway Assoc., 163 AD3d 452, 456 [1st Dept 2018], appeal withdrawn 32 NY3d 1168 [2019]).

Metropolitan failed to establish prima facie that it met its contractual obligation to procure insurance (see Simon v Granite Bldg. 2, LLC, 114 AD3d 749, 756 [2d Dept 2014]; Simmons v Berkshire Equity, LLC, 149 AD3d 1119, 1121 [2d Dept 2017]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: April 20, 2021