Supreme Court, Kings County

Decided on July 17, 2026

Index No. 504475/2023

Francois A. Rivera, J.

[*1]

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on April 21, 2026, under motion sequence number two, by defendant Welco Pharmacy, Inc. d/b/a Kelly's Pharmacy (hereinafter Welco) for an order pursuant to CPLR 3212: (1) granting summary judgment in favor of Welco on the issue of liability and dismissing the complaint of Leonard Insalco (hereinafter the plaintiff) and (2) dismissing all cross-claims asserted against it by Cottco LLC (hereinafter Cottco or the co-defendant). The motion is opposed.

Notice of motion

Affirmation in support

Exhibits A-N

Affirmation in opposition by plaintiff

Affirmation in opposition by Cottco^FN1

Affirmation in reply by Welco

Exhibit A

Statement of material facts^FN2

Counter statement of material facts by plaintiff

Counter statement of material facts by Cottco^FN3

Exhibit 1

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of cross-motion filed on May 27, 2026, under motion sequence number three, by defendant Cottco for an order pursuant to CPLR 3212, granting summary judgment in its favor on all cross-claims it has asserted against Welco. The motion is opposed.

Notice of cross-motion

Affirmation in support^FN4

Affirmation in opposition by Welco

Exhibit A

Affirmation of no position by plaintiff

Affirmation by Welco in response to plaintiff's affirmation of no position.

Exhibit A

[*2]BACKGROUND

On February 10, 2023, the plaintiff commenced the instant action for damages for personal injury by filing a summons and verified complaint with the Kings County Clerk's office (KCCO).

The verified complaint alleged the following salient facts in support of a single cause of action for personal injuries. Welco owned, operated, managed, controlled, maintained, repaired, and leased, a pharmacy known as "Kelly's Pharmacy" located at a certain address in Brooklyn, New York. Cottco owned, operated, managed, controlled, maintained, and repaired the premises located at the same address in Brooklyn, New York (hereinafter the subject property).

On June 2, 2022, the plaintiff was walking on the sidewalk in front of the subject property and was caused to trip and fall and suffer injuries (hereinafter the subject accident) due to the broken, uneven, and dangerous condition of the sidewalk in front of the subject property. The dangerous condition was adjacent to United States Postal Service mailbox. The subject accident was caused by the defendants' negligence and that of their agents, servants, employees and licensees in the ownership, operation, management, control, and repair of the sidewalk in front of the subject property. The defendants had actual and constructive notice of the defective condition.

On July 14, 2023, Cottco interposed and filed a verified answer and cross-claim with the KCCO. Cottco's cross-claims were asserted against Welco for common law indemnity, contribution, contractual indemnity, and breach of a contract to procure insurance.

On September 1, 2023, Welco interposed and filed a verified answer and cross-claims with the KCCO. Welco's cross-claims were asserted against Cottco for common law indemnity, contribution, and contractual indemnity.

LAW AND APPLICATION

It is well established that summary judgment may be granted only when no triable issue of fact exists (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating "the absence of any material issues of fact" (Alvarez, 68 NY2d at 324; Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]).

A failure to make that showing "requires a denial of the summary judgment motion, regardless of the sufficiency of the opposing papers" (Alvarez, 68 NY2d at 324; Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993]). If a prima facie showing has been made, "the burden shifts to the party opposing the motion . . . to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact" (Alvarez, 68 NY2d at 324). "Pursuant to CPLR 3212 (b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, 'that there is no defense to the cause of action or that the cause of action or defense has no merit.' Further, all the evidence must be viewed in the light most favorable to the opponent of the motion" (People v Grasso, 50 AD3d 535, 544 [1st Dept 2008], quoting Marine Midland Bank v Dino &Artie's Automatic Transmission Co., 168 AD2d 610, 610 [2d Dept 1990]).

Welco's Motion for Summary Judgment Dismissing the Complaint

Welco's evidentiary submission included, inter alia, photographs of the sidewalk defect at the site of the subject accident, Welco's lease with Cottco for the subject property, the deposition transcripts of the plaintiff, the deposition transcript of its manager, Abubakr Sivdique, and the deposition transcript of the principal of Cottco, Steven Cotton.

Welco's evidentiary submission established the following facts. On June 2, 2022, at the time of the subject accident, the plaintiff was employed as a letter carrier for the United States Postal Service and was picking up the mail from a green USPS "relay box" as part of his regular route. The relay box was alongside a blue USPS mailbox located on the sidewalk in front of the subject property. As the plaintiff was walking away from the relay box he fell over a hole in the sidewalk.

Defendant Cottco was the owner and Welco was a commercial tenant and lessee of the subject premises. Welco established that it did not perform any work on the sidewalk near the area where the hole was located and that it did not cause the defective condition. Welco also established that it did not undertake any responsibility towards the abutting sidewalk.

Administrative Code of City of NY § 7-210 (a) imposes a duty upon "the owner of real property abutting any sidewalk . . . to maintain such sidewalk in a reasonably safe condition." "[A] lessee of property which abuts a public sidewalk owes no duty to maintain the sidewalk in a safe condition, and liability may not be imposed upon it for injuries sustained as a result of a dangerous condition in the sidewalk, except where the abutting lessee either created the condition, voluntarily but negligently made repairs, caused the condition to occur because of some special use, or violated a statute or ordinance placing upon the lessee the obligation to maintain the sidewalk which imposes liability upon the lessee for injuries caused by a violation of that duty" (Martin v Rizzatti, 142 AD3d 591, 592-593 [2d Dept 2016]; see Hsu v City of New York, 145 AD3d 759, 760 [2d Dept 2016]).

Additionally, "[a]s a general rule, the provisions of a lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to a third party" (Hsu v City of New York, 145 AD3d 759, 760 [2d Dept 2016]). Only "where a lease agreement is so comprehensive and exclusive as to sidewalk maintenance as to entirely displace the landowner's duty to maintain the sidewalk, the tenant may be liable to a third party" (Hsu v. City of New York, 145 AD3d 759, 760 [2d Dept 2016], citing Paperman v 2281 86th St. Corp., 142 AD3d 540, 541 [2d Dept 2016]). Here, Welco established its lease with Cottco was not so comprehensive and exclusive as to sidewalk maintenance as to entirely displace Cottco's duty to maintain the sidewalk (see Brady v 2247 Utica Ave. Realty Corp., 210 AD3d 621, 622 [2d Dept 2022]). Welco established that it had no duty to maintain the sidewalk abutting the property it leased (Brady v 2247 Utica Ave. Realty Corp., 210 AD3d 621, 622 [2d Dept 2022]).

Welco's evidentiary submission established that it had no duty to the plaintiff to maintain or repair the sidewalk in front of its commercial establishment. Welco further established that it did not cause the defect and that it had made no special use of the area of the sidewalk where the defect was located. In sum, Welco made a prima facie showing of entitlement to dismissal of the cause of action for negligence asserted against it.

The plaintiff's opposition papers did not raise a triable issue of fact. Therefore, the cause of action for negligence asserted against Welco is dismissed.

Welco's Motion for Summary Judgment Dismissing Cottco's Cross-Claims

Cottco asserted cross-claims against Welco for common law indemnity, contribution, [*3]contractual indemnity, and breach of a contract to procure insurance.

"The principle of common-law, or implied, indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party" (Board of Mgrs. of the 125 N. 10th Condominium v 125 North10, LLC, 150 AD3d 1063, 1064 [2d Dept 2017], quoting Curreri v Heritage Prop. Inv. Trust, Inc., 48 AD3d 505, 507 [2d Dept 2008]). "The party seeking indemnification 'must have delegated exclusive responsibility for the duties giving rise to the loss to the party from whom indemnification is sought' and must not have committed actual wrongdoing itself (Tiffany at Westbury Condominium v Marelli Dev. Corp., 40 AD3d 1073, 1077 [2nd Dept 2007], quoting 17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 80 [1st Dept 1999]). "Common-law indemnification is warranted where a defendant's role in causing the plaintiff's injury is solely passive, and thus its liability is purely vicarious" (Balladares v Southgate Owners Corp., 40 AD3d 667, 671 [2d Dept 2007]; see also Dreyfus v MPCC Corp., 124 AD3d 830, 830 [2nd Dept 2015]).

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, 602-603 [1988]). The parties need not be liable under the same theories or whether the party from whom contribution is sought is allegedly responsible for the injury as a "concurrent, successive, independent, alternative or even intentional tort-feasor" (id. at 603). "The right to 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, 216 [1980]; McFall v Compagnie Maritime Belge S.A., 304 NY 314, 327-328 [1952]). "[W]here a party is held liable at least partially because of its own negligence, contribution against other culpable tort-feasors is the only available remedy" (Fox v County of Nassau, 183 AD2d 746, 747 [2d Dept 1992]). To sustain a cause of action for contribution, the party seeking contribution "is required to show that . . . a duty was owed to the plaintiff[ ] as an injured part[y] and that a breach of that duty contributed to the alleged injuries" (Eisman v Village Of E. Hills, 149 AD3d 806, 808 [2d Dept 2017], quoting Guerra v St. Catherine of Sienna, 79 AD3d 808, 809 [2d Dept 2010]). Thus, contribution is not available where the co-defendant owed no duty or breached no duty to either the party seeking contribution or to the plaintiff (see Rodriguez v Suffolk, 305 AD2d 574 [2d Dept 2003]).

Inasmuch as Welco has established its freedom from liability in the happening of the subject accident, Cottco has no cause of action against Welco for either common law indemnity or contribution. The cross-claims for common law indemnity and contribution are dismissed.

Welco's motion to dismiss the cross-claim of Cottco for contractual indemnity is denied as premature. The lease indemnification language contained triggering language and Welco did not eliminate all material issues of fact regarding their inapplicability to the facts of this action.

Welco's motion to dismiss the cross-claim of Cottco for breach of contract for failure to procure insurance is granted. At oral argument Cottco's counsel conceded that Welco did procure the contractually required insurance coverage.

Cottco's Motion for Summary Judgment on Its Cross-Claims Asserted Against Welco

On July 14, 2023, Cottco interposed and filed a verified answer with cross-claims asserted against Welco for common law indemnity, contribution, contractual indemnity, and [*4]breach of a contract to procure insurance.

As previously indicated, Welco demonstrated its freedom of fault in the happening of the subject accident. Consequently, Cottco's motion for summary judgment in its favor on the issue of liability on it claims against Welco for common law indemnity and contribution are denied.

Cottco did not eliminate all material issues of fact on its claim for contractual indemnity asserted against Welco. Cottco's motion for summary judgment in its favor on its claim for contractual indemnity as asserted against Welco is denied.

Cottco's claim against Welco for breach of contract for failure to procure insurance is denied. Cottco's counsel conceded that Welco did provide the required insurance coverage.

Cottco's motion for summary judgment on its claims for common law indemnity, contribution, contractual indemnity, and breach of a contract to procure insurance are all denied without regard to the sufficiency of Welco's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

CONCLUSION

The branch of the motion by defendant Welco Pharmacy, Inc. d/b/a Kelly's Pharmacy (hereinafter Welco) for an order pursuant to CPLR 3212 granting summary judgment in its favor on the issue of liability and dismissing the complaint of plaintiff Leonard Insalco is granted.

The branch of the motion by defendant Welco Pharmacy, Inc. d/b/a Kelly's Pharmacy (hereinafter Welco) for an order pursuant to CPLR 3212 granting summary judgment in its favor and dismissing all cross-claims asserted against it by co-defendant Cottco LLC is granted in part and denied in part as follows:

Welco's motion is granted on Cottco LLC's causes of action for common law indemnity, contribution, and breach of a contract to procure insurance.

Welco's motion is denied on Cottco LLC's causes of action for contractual indemnity.

The cross-motion by Cottco LLC seeking an order pursuant to CPLR 3212 granting summary judgment in its favor on its cross-claims asserted against Welco Pharmacy, Inc. d/b/a Kelly's Pharmacy for common law indemnity, contribution, contractual indemnity, and breach of a contract to procure insurance is denied.

The foregoing constitutes the decision and order of this Court.

ENTER:

J.S.C.