T.D. Bank N.A., formerly known as Commerce Bancorp, Inc., Third–Party Plaintiff–Appellant, v. Milford Management Corp., et al., Third–Party Defendants–Respondents. (2011)

Isaacson, Schiowitz & Korson, LLP, New York (Martin Schiowitz of counsel), for Arias respondents.

Thomas D. Hughes, New York (Richard C. Rubinstein of counsel), for 200 East 65 th Street Condominium, 210 East 65 th Street Condominium, Milford Management Corp., Milro Associates and Mastic Associates, Inc., respondents.

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Order, Supreme Court, New York County (Richard F. Braun, J.), entered June 2, 2011, which denied the motion of defendant/third-party plaintiff TD Bank N.A. for summary judgment dismissal of the complaint as against it and on its indemnification claims in the third-party action, unanimously affirmed, without costs.

The trial court properly denied summary judgment because TD Bank failed to “tender[ ] sufficient evidence to demonstrate the absence of [a] material issue [ ] of fact” (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986] ) regarding whether it created the defect that caused plaintiff's accident.   The only evidence on which TD Bank relied, the testimony of an employee of the property manager, who was not employed by TD Bank, and whose testimony provided no basis to conclude that he would have been aware if TD Bank or someone in its control created a defect in the sidewalk, was inadequate to make out the required prima facie showing that neither TD Bank nor someone under its control created the defect (compare Martinez v Hunts Point Coop. Mkt., Inc., 79 AD3d 569, 570 [2010] ).

In light of the foregoing, the court correctly denied summary judgment as to the indemnification claims.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK