DRUMMOND v. Associated Test & Balance Inc., Defendant–Appellant. (2022)

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered March 24, 2021, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment on the issue of liability against defendant Associated Test & Balance Inc. (AT & B), granted defendants 450 Partners LLC, Brookfield Properties (USAII) LLC f/k/a Brookfield Properties Management LLC, Tishman Construction Corporation, and Brookfield Properties Developer LLC's (Owner Defendants) motion for summary judgment on their cross claim for common-law indemnification against AT & B, and denied AT & B's motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously affirmed, without costs.

The court correctly granted plaintiff's motion for partial summary judgment on the issue of liability and denied AT & B's motion for summary judgment dismissing the complaint.  The record evidence, including surveillance footage capturing an AT & B employee placing the sheet of Masonite on the lobby floor shortly before plaintiff tripped and fell on it, established that AT & B left the premises “less safe” than before, and therefore launched a force or instrument of harm (see Church v. Callanan Indus., Inc., 99 N.Y.2d 104, 112, 752 N.Y.S.2d 254, 782 N.E.2d 50 [2002];  Espinal v. Melville Snow Contrs., Inc., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002]).  AT & B's contention that it justifiably relied on the Owner Defendant's instructions to place the Masonite on the floor is unavailing (see Hartofil v. McCourt & Trudden Funeral Home, Inc., 57 A.D.3d 943, 945, 871 N.Y.S.2d 299 [2d Dept. 2008]).  The issue of plaintiff's comparative fault remains an issue for the factfinder at trial (see Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 [2018]).

Absent evidence of active negligence on the Owner Defendants’ part, or that they controlled AT & B's work, the court correctly granted them summary judgment on their cross claim for common-law indemnification against AT & B (see e.g. Tighe v. Hennegan Constr. Co., Inc., 48 A.D.3d 201, 202, 850 N.Y.S.2d 417 [1st Dept. 2008]).

We have considered AT & B's remaining arguments and find them unavailing.