SZYMCZYK v. HUDSON 36 LLC (2025)

Order, Supreme Court, New York County (Dakota D. Ramseur, J.), entered on or about April 26, 2024, which, to the extent appealed from as limited by the briefs, denied second third-party defendant Horsepower Electric and Maintenance Corp.’s motion for summary judgment dismissing the second third-party claim against it for common-law indemnification and contribution, unanimously reversed, on the law, without costs, and the motion granted.

In this construction accident case plaintiff alleges that he slipped in an interior staircase on an approximately five-inch piece of unattached BX electrical cable.  Horsepower was named as a second third-party defendant by defendants/third-party plaintiffs Hudson 36 LLC, the owner of the subject property, and Hudson 37 LLC, the general contractor at the site (collectively Hudson).  Horsepower established prima facie entitlement to summary judgment by showing that it was not working at or near the site of the accident on the date of the accident or in the days immediately prior (see e.g. Santoli v. 475 Ninth Ave. Assoc., LLC, 2007 N.Y. Slip Op. 32569[U] [Sup. Ct., N.Y. County 2007]).  It also provided unrebutted testimony concerning its protocol for consolidating its workplace debris at the end of each day.  A separate subcontractor was tasked with cleaning the worksite.  Hudson did not submit a brief on this appeal.  Its argument in opposition below rested entirely on the allegation that Horsepower was the only trade that used the BX cable on which plaintiff allegedly slipped.  This allegation, standing alone, was insufficient in the face of Horsepower's evidence to raise a triable issue of fact (see Digirolomo v. 160 Madison Ave LLC, 194 A.D.3d 640, 640, 144 N.Y.S.3d 567 [1st Dept. 2021];  Kimball–Malone v. City of New York, 7 A.D.3d 675, 675–676, 777 N.Y.S.2d 513 [2d Dept. 2004]).

Accordingly, Supreme Court should have granted the motion to dismiss the second third-party claim against Horsepower for common-law indemnification and contribution.