SAU FONG LI WOO v. Eric McClendon, et al., second third-party defendants-respondents. (2009)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Harkavy, J.), dated July 13, 2005, as granted the motion of the defendant third-party plaintiff for summary judgment dismissing the complaint, and the third-party defendant second third-party plaintiff separately appeals, as limited by its notice of appeal and brief, from so much of the same order as denied that branch of its cross motion which was for summary judgment dismissing the claim of the defendant third-party plaintiff for contractual indemnification, and granted the cross motion of the second third-party defendant J & J Super, Inc., for summary judgment dismissing the second third-party complaint insofar as asserted against it.

ORDERED that the order is modified by deleting the provision thereof granting the defendant third-party plaintiff's motion for summary judgment dismissing the complaint, and substituting therefor a provision denying that motion;  as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable to the plaintiffs by the defendant third-party plaintiff.

In December 2001 the plaintiffs' decedent was violently assaulted and injured by the second third-party defendant Eric McClendon.   The attack took place on the sixth floor of an industrial loft building located at 265 Canal Street in Manhattan.   The building was owned by the defendant third-party plaintiff, 267 Canal Street Corp. (hereinafter 267 Canal), which leased a portion of the sixth floor of the subject building to the third-party defendant second third-party plaintiff, GBT Fashion, Inc. (hereinafter GBT), a corporation that was solely owned by the decedent.

By showing that it provided the minimal security precautions against crime required in its industrial loft building, 267 Canal made out a prima facie case of its entitlement to summary judgment dismissing the complaint.   In response to that showing, the plaintiffs demonstrated the existence of factual questions as to whether or not 267 Canal was negligent in the maintenance of the security devices installed in its building (see Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 550, 684 N.Y.S.2d 139, 706 N.E.2d 1163;  Venetal v. City of New York, 21 A.D.3d 1087, 1088-1090, 803 N.Y.S.2d 609;  Latini v. Auburn Leasing Corp., 267 A.D.2d 358, 700 N.Y.S.2d 66;  cf. Alvarez v. Masaryk Towers Corp., 15 A.D.3d 428, 789 N.Y.S.2d 727;  Novikova v. Greenbriar Owners Corp., 258 A.D.2d 149, 153-154, 694 N.Y.S.2d 445).   Accordingly, the motion of 267 Canal for summary judgment dismissing the complaint should have been denied (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

Contrary to the contention of GBT, the Supreme Court did not err in denying that branch of its cross motion which was to dismiss the claim of 267 Canal for contractual indemnification (see Great N. Ins. Co. v. Interior Constr. Corp., 7 N.Y.3d 412, 416-419, 823 N.Y.S.2d 765, 857 N.E.2d 60;  Castano v. Zee-Jay Realty Co., 55 A.D.3d 770, 866 N.Y.S.2d 700).

The remaining contention of GBT is without merit.