Supreme Court, Bronx County, March 15, 2021

Burke, Conway & Stiefeld, White Plains, for Longlaf Realty, LLC and another, defendants.

Carroll, McNulty & Kull, LLC, New York City, for Halcyon Construction Corp., defendant.

Epstein Shakh LLP, Syosset, for plaintiffs.

In this action, plaintiff Charles Augustine alleges that he was injured as a result of a [*2]dangerous condition, consisting of rolled up chain link fence, that was located in a storage yard on premises owned by defendant Longlaf Realty, LLC and leased to defendant Halcyon Construction Corp. The portion of defendants Longlaf Realty, LLC and 833 Whittier St., LLC's motion for summary judgment dismissing the complaint as against them is granted. The portions of the motion seeking summary judgment against defendant Halcyon Construction Corp. for indemnification and for breach of contract by defendant Halcyon Construction Corp. for failure to procure insurance are denied.

The plaintiffs do not oppose the motion for summary judgment. The only party to submit opposition is defendant Halcyon Construction Corp. Said defendant has not interposed any cross claims against either defendant Longlaf Realty, LLC or defendant 833 Whittier St., LLC in either its initial answer or in its answer to the amended complaint.

This court has been unable to find any authority in New York State addressing the issue of a defendant's standing to oppose a codefendant's summary judgment motion when the plaintiff does not oppose the motion and there are no cross claims made against the moving defendant. However, it has been addressed by several district courts on the federal level. In Blonder v Casco Inn Residential Care, Inc. (2000 WL 761895, 2000 US Dist LEXIS 8054 [D Me, May 4, 2000, No. CIV. 99-274-P-C]), the court concluded that, in the absence of a cross claim, a codefendant lacks standing to oppose the codefendant's motion for summary judgment. The Blonder court looked to the principles underlying Federal Rules of Civil Procedure rule 56 in concluding that the non-moving codefendants lacked standing to oppose the motion, stating that

"the Court notes that Rule 56 is intended to avoid trial when appropriate and to bring about summary justice whenever legally proper. Requiring Plaintiff to prosecute her claims against Defendants . . . when she no longer believes such claims to be viable would be contrary to the principle of Rule 56 that trials (or portions thereof) should be avoided when appropriate. Requiring Defendants . . . to endure such a trial would be contrary to the{**71 Misc 3d at 717} principle of Rule 56 that the Court should bring about summary justice whenever legally proper." (Blonder, 2000 WL 761895, *1, 2000 US Dist LEXIS 8054, *4.)

Although there is not unanimity among the few district courts that have considered this issue, the weight of the authority of those courts have concurred with Blonder. (See e.g. Eckert v City of Sacramento, 2009 WL 3211278, 2009 US Dist LEXIS 95655 [ED Cal, Sept. 29, 2009, No. 2:07-cv-00825-GEB-GGH]; Aktas v JMC Dev. Co., Inc., 877 F Supp 2d 1 [ND NY, June 28, 2012]; Dorvin v 3901 Ridgelake Dr., LLC, 2012 WL 1057599, 2012 US Dist LEXIS 42546 [ED La, Mar. 27, 2012, Civ Action No. 11-00696]; Thurman v Wood Group Prod. Servs., Inc., 2010 WL 5207587, 2010 US Dist LEXIS 132190 [ED La, Dec. 14, 2010, Civ Action No. 09-4142]; Hawes v Blast-Tek, Inc., 2010 WL 2680778, 2010 US Dist LEXIS 67089 [D Minn, July 2, 2010, Civ. No. 09-365 (RHK/AJB)]; In re Vancil Contr., Inc., 2008 WL 746969, 2008 Bankr LEXIS 678 [CD Ill, Mar. 19, 2008, No. 06-71254]; Brewer v Dodson Aviation, 2006 WL 3231974, 2006 US Dist LEXIS 81528 [WD Wash, Nov. 7, 2006, No. C04-2189Z]; Dixon v County of Alameda, 1997 WL 220311, 1997 US Dist LEXIS 5717 [ND Cal, Apr. 17, 1997, No. C 95-4617-SI].)

While New York State courts are not governed by the Federal Rules of Civil Procedure, this court finds the rationale of Blonder to be persuasive. Indeed, as noted in Hawes, to hold otherwise would compel a plaintiff to pursue what it considers to be frivolous claims at trial in violation of its ethical obligations. As such, this court finds that defendant Halcyon Construction Corp. has no standing to oppose that portion of the motion for summary judgment seeking dismissal of plaintiff's claims against the moving defendants.

Even if the court were to consider defendant Halcyon Construction Corp.'s arguments, the motion would, nevertheless, be denied. Defendant Halcyon Construction Corp.'s opposition papers contain nothing more than speculation and conjecture in support of its contentions that the [*3]moving defendants either created or had notice of the alleged condition that caused the plaintiff's accident.

There is no evidence that defendant 833 Whittier St., LLC had any ownership interest whatsoever in the property where the accident occurred nor was defendant 833 Whittier St., LLC a party to the lease agreement for the subject property, located{**71 Misc 3d at 718} at 1343 Lafayette Street, which was between defendant Longlaf Realty, LLC as landlord and defendant Halcyon Construction Corp. as tenant. A review of the lease agreement reveals that defendant Longlaf Realty, LLC was only responsible for structural repairs and that all other duties and responsibilities for the care and maintenance of the yard located at 1343 Lafayette Street fell on defendant Halcyon Construction Corp. Therefore, the motion for summary judgment dismissing the complaint as against the moving defendants is granted.

However, the portions of the moving defendants' papers seeking indemnification from defendant Halcyon Construction Corp. and finding that defendant Halcyon Construction Corp. is in breach of contract for failing to procure insurance or provide a defense are denied. The indemnification issue has been rendered moot by the dismissal of the action against the moving defendants. The certificate of insurance offered as an exhibit to the moving defendants' papers clearly shows that defendant Longlaf Realty, LLC is listed as an additional insured. Said defendant nowhere alleges that it tendered the defense to the insurance carrier and that the carrier disclaimed coverage. Even if the insurer had disclaimed defendant Longlaf Realty, LLC's tender, that does not constitute a breach of the agreement by defendant Halcyon Construction Corp. (See Arner v RREEF Am., L.L.C., 121 AD3d 450 [1st Dept 2014].)

Finally, the court rejects defendant Halcyon Construction Corp.'s argument that the moving defendants' motion is untimely. This argument is based upon an order, dated April 1, 2019, that gave the parties 60 days to file summary judgment motions from the completion of discovery, which defendant Halcyon Construction Corp. argues occurred when the depositions were concluded. However, the same court ordered further discovery in a later order, dated February 6, 2020. As such, the 60 day period had not yet begun to run when this motion was filed.

Accordingly, the portion of defendants Longlaf Realty, LLC and 833 Whittier St., LLC's motion for summary judgment dismissing the complaint as against them is granted; the portion of the motion for summary judgment against defendant Halcyon Construction Corp. for breach of the contract between the parties by failing to procure insurance is denied, as defendant Longlaf Realty, LLC is listed as an additional insured on the certificate of insurance; and the portion of the motion seeking indemnification from defendant Halcyon Construction Corp.{**71 Misc 3d at 719} is denied as moot. The action is dismissed as against defendants Longlaf Realty, LLC and 833 Whittier St., LLC only.