| Benn v Beacon Capital Partners, LLC |
| 2021 NY Slip Op 02356 [193 AD3d 540] |
| April 20, 2021 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Michael Benn, Plaintiff, v Beacon Capital Partners, LLC, et al., Defendants. (And 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Inc., 188 AD3d 443, 446-447 [1st Dept 2020]; Farrugia v 1440 Broadway Assoc., 163 AD3d 452, 456 [1st Dept 2018], appeal withdrawn 32 NY3d 1168 [2019]).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]). Concur—Webber, J.P., Kern, Oing, González, JJ.