Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of [*2]defendant/third-party plaintiff Doshi Diagnostic Imaging Services, P.C. Individually and a/k/a Diagnostic Imaging Group and Avenue R. Realty, LLC (hereinafter the movants), filed on November 10, 2015, under motion sequence number three, for an order granting a default judgment against third-party defendant AA & S Construction Management LLC (hereinafter AASC) pursuant to CPLR 3215.

Notice of motion

Affirmation in support

Exhibits A-G

Affidavit in support

Exhibits A-C

On September 25, 2013, plaintiff Zadeek Parenta commenced the instant action by filing a summons and complaint with the Kings County Clerk's office. Plaintiff's complaint is for damages for personal injuries allegedly sustained on December 30, 2010 when she slipped and fell due to an icy and or snowy condition in front of 1230 Avenue R, Brooklyn, New York (hereinafter the subject property). The movants joined issue by answer dated December 17, 2013.

On May 21, 2015, the movants commenced a third-party action by filing a third-party summons and complaint with the Kings County Clerk's office. On May 28, 2015, the movants served the third-party summons and complaint on AASC via the New York State Secretary of State. AASC has not answered the third-party complaint or submitted opposition to the instant motion.

The movants' third-party complaint alleges twenty-nine allegations of fact in support of four causes of action. The first cause of action is for contribution. The second cause of action is for common law indemnification. The third cause of action is for contractual indemnification. The fourth cause of action is for breach of contract to procure insurance coverage.

CPLR 3215 (a) and (f) provides in pertinent part as follows:

(a) Default and entry. When a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him.

...

(f) Proof. On any application for judgment by default, the applicant shall file proof of service of the summons and the complaint ... and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party ... Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party's attorney.

On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defaulting party's default in answering or appearing (see CPLR 3215(f); Atlantic Cas. Ins. Co. v RJNJ Services, Inc., 89 AD3d 649, 651 [2d 2011]). CPLR 3215(f) states specifically, among other things, that upon any application for a judgment by default, proof of the facts constituting the claim are to be set forth in an affidavit made by the party (HSBC Bank USA, N.A. v Betts, 67 AD3d 735, 736 [2d 2009]).

The affidavit of service of the movants' process server establishes proper service of the third-party complaint upon AASC pursuant to Limited Liability Law § 303. The affirmation of Kevin Barry McHugh, the movants' counsel, demonstrates personal of AASC's default in answering the third-party complaint. McHugh's affirmation, however, demonstrates no personal knowledge of the transactions or occurrence alleged in the complaint and third-party complaint.

The affidavit of Mark E. Gelfand (hereinafter Gelfand), the General Counsel of each of the movants and of two non-parties, namely New Primecare, LLC (hereinafter NPL) and Diagnostic Imaging Group, LLC (hereinafter DIG) avers certain facts and refers to three annexed exhibits labeled A, B and C. Gelfand does not claim to be an officer of plaintiff Doshi Diagnostic Imaging Services, P.C. or a member of plaintiff Avenue R Realty, LLC. He does, however, alleges personal knowledge based on his review of records maintained by Doshi Diagnostic Imaging Services, P.C. and NPL.

Gelfand identifies exhibit A as a lease for the subject property between Avenue R Realty, LLC, as landlord and NPL tenant. He avers that NPL managed the subject property and arranged for AASC to perform snow removal during the relevant period. He identifies exhibit B as an invoice form AASC for services performed on the subject property on December 27th and 28th of 2010. He identifies exhibit C as plaintiff's bill of particulars. Plaintiff alleges in his bill of particulars that he was injured on December 30, 2010, due to a fall caused by a dangerous snow or ice condition in front of the subject property.

The third-party complaint is not verified and therefore may not be used pursuant to CPLR 105(u) in lieu of an affidavit of the plaintiff to prove the facts asserted therein. The third-party complaint alleges, among other things, that on December 20, 2010, AASC had a contract for snow and ice removal (hereinafter the contract) at the subject property. Gelfand avers that on December 20, 2010, the subject property was owned by Avenue R Realty, LLC and was leased to New Primecare LLC, a wholly owned entity of Diagnostic Imaging Group, LLC. Based on the contract and its negligent performance of its services, AASC is allegedly liable to the movants for any recovery the plaintiff obtains from the movants.

Gelfand's affidavit does not allege any facts to support a claim that AASC breached a contract to procure insurance for the benefit of the movants. The motion papers do not contain a copy of the contract with AASC to perform snow and ice removal services and there is no claim by anyone with personal knowledge that the contract was oral. In the absence of a contract, the movants cannot demonstrate a viable claim for contractual indemnification. Nor can they demonstrate a viable claim that AASC breached a contract to procure insurance for the benefit of the movants.

The movants remaining claims for common law indemnification and contribution are [*3]subject to the following considerations. A cause of action for contribution requires that the culpable parties must be subject to liability for damages for the same personal injury (Nassau Roofing & Sheet Metal v Facilities Development Corporation, 71 NY2d 599 [1988]). The parties need not be liable under the same theories or whether the party whom contribution is sought is allegedly responsible for the injury as a "concurrent, successive, independent, alternative or even intentional tortfeasor" (Id.) Contribution is not founded upon, nor does it necessarily arise from, contract, and only a ratable or proportional reimbursement is sought (McDermott v City of New York, 50 NY2d 211[1980]; McFall v Compagnie Maritime Belge S.A., 304 NY 314 [1952]; Fox v County of Nassau, 183 AD2d 746 [2nd Dept 1992]. Where a party is held liable at least partially because of its own negligence, contribution against other culpable tortfeasors is the only available remedy" (Fox v County of Nassau, 183 AD2d 746 [2nd Dept 1992]). Similarly, a claim for apportionment exists when two or more tortfeasors combine to cause an injury, the resulting loss is to be split among them according to their comparative degrees of fault (Dole v Dow Chem. Co., 30 NY2d 143 [1972]. Conversely, common-law indemnity requires vicarious liability without actual fault on the part of the proposed indemnitee. (Rehberger v Garguilo & Orzechowski, LLP, 118 AD3d 767 [2d Dept 2014]). Common law indemnification requires that only one party, the indemnitor be at fault in the causing of the accident. Accordingly, it is impossible to simultaneously be entitled to common law indemnification and also be entitled to contribution and apportionment.

The movants claim for contribution and common law indemnification is premised on AASC's purported negligent performance of it contractual obligation to remove snow and ice in front of the subject property. There are only three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care, and thus be potentially liable in tort, to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely (See Espinal v Melville Snow Contractors, Inc., 98 NY2d 136 [2002]).

Neither the complaint, third-party complaint, nor the evidentiary submissions by the movants alleges any facts demonstrating that AASC launched the instrument of plaintiff's harm. Nor do they allege or show that the plaintiff detrimentally relied on AASC's performance of its snow and ice removal contract with the movants. Furthermore, as previously stated, the movants' submission does not include the subject contract. Therefore, the movants cannot demonstrate that AASC displaced the movants' duty to maintain the premises safe from dangerous snow and ice conditions.

In light of the foregoing, the movants have not set forth evidence of a viable tort claim against AASC, and consequently have not set forth evidence of a viable claim for contribution or common law indemnification.

Doshi Diagnostic Imaging Services, P.C. and Avenue R. Realty, LLC's motion for an order pursuant to CPLR 3215 granting a default judgment against third-party defendant AA & S Construction Management LLC on its claims for contribution, common law indemnification, contractual indemnification and for breach of contract to procure insurance coverage is denied [*4]without prejudice.

The foregoing constitutes the decision and order of this Court.