ATTIA v. JV LLC (2023)

Order, Supreme Court, New York County (William Perry, J.), entered on or about June 21, 2022, which, to the extent appealed from, denied defendants Slazer Enterprises, LLC's and Bovis Lend Lease LMB, Inc.’s motion for summary judgment dismissing the complaint as against them and for summary judgment on their cross claims for contractual and common-law indemnification against defendant Civetta Cousins JV LLC, unanimously affirmed, without costs.

Plaintiff alleges that he was injured when he tripped and fell on a snow-covered plywood plank on the sidewalk abutting 20 East 23rd Street in Manhattan, a property owned by defendant Slazer.  Slazer contracted with defendant Bovis to act as the construction manager on a project to construct a residential building on the property.  Bovis subcontracted with defendant Civetta to perform excavation and foundation work on the project.

The court properly denied Slazer and Bovis summary judgment dismissing the complaint as against them.  Slazer and Bovis failed to make a prima facie showing that they lacked constructive notice of the plywood that allegedly caused plaintiff to trip and fall, as they did not submit any evidence establishing when they last inspected the sidewalk abutting their construction site prior to the accident (see Dakers v. BFP Tower C Co., LLC, 208 A.D.3d 1128, 1129, 176 N.Y.S.3d 19 [1st Dept. 2022];  Smith v. Montefiore Med. Ctr., 192 A.D.3d 609, 610, 146 N.Y.S.3d 28 [1st Dept. 2021]).  The testimony of Bovis's senior superintendent that he “would” inspect the sidewalk at the end of each workday, without any indication as to whether this general practice was followed on the day of the accident, was insufficient to establish absence of constructive notice (see Williams v. Beth Israel Hosp. Assn., 201 A.D.3d 429, 430, 161 N.Y.S.3d 54 [1st Dept. 2022];  Joachim v. AMC Multi–Cinema, Inc., 129 A.D.3d 433, 434, 11 N.Y.S.3d 119 [1st Dept. 2015]).

Absent a showing that they were free of negligence, Slazer and Bovis are not entitled to contractual and common-law indemnification from Civetta (see Correia v. Professional Data Mgt., Inc., 259 A.D.2d 60, 65, 693 N.Y.S.2d 596 [1st Dept. 1999]).