PARABIT REALTY LLC v. Holzmacher, McLendon & Murrell, P.C., et al., appellants.

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PARABIT REALTY, LLC, et al., plaintiffs-respondents, v. TOWN OF HEMPSTEAD, et al., defendants-respondents, Holzmacher, McLendon & Murrell, P.C., et al., appellants.

Decided: January 15, 2014

WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ. L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Martin A. Schwartzberg and Keith Stevens of counsel), for appellants. Edelstein & Grossman, New York, N.Y. (Jonathan I. Edelstein of counsel), for plaintiffs-respondents. Bee Ready Fishbein Hatter & Donovan, LLP, Mineola, N.Y. (Angelo M. Bianco of counsel), for defendants-respondents Town of Hempstead, Town of Hempstead Department of Buildings, Brian Nocella, Mark Schwarz, and Todd Goldfarb. Brian J. Davis, P.C., Garden City, N.Y., for defendant-respondent B and A Demolition and Removal, Inc.

In an action, inter alia, to recover damages for injury to property, the defendants Holzmacher, McLendon & Murrell, P.C., and Michael Bonacasa appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Mahon, J.), entered May 2, 2012, as denied that branch of their motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against them and granted that branch of the cross motion of the defendants Town of Hempstead, Town of Hempstead Department of Buildings, Brian Nocella, and Mark Schwarz which was for summary judgment on their cross claim against them for common-law indemnification.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the cross motion of the defendants Town of Hempstead, Town of Hempstead Department of Buildings, Brian Nocella, and Mark Schwarz which was for summary judgment on their cross claim against the defendants Holzmacher, McLendon & Murrell, P.C., and Michael Bonacasa and substituting therefor a provision denying that branch of the cross motion as academic; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiffs and the defendant B and A Demolition and Removal, Inc., appearing separately and filing separate briefs, payable by the defendants Holzmacher, McLendon & Murrell, P.C., and Michael Bonacasa.

The defendants Holzmacher, McLendon & Murrell, P.C., and Michael Bonacasa (hereinafter together the HM & M defendants) established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them and dismissing the cross claim asserted against them by the defendant B and A Demolition and Removal, Inc. (hereinafter B and A). However, in opposition to the HM & M defendants' motion, the plaintiffs and B and A raised triable issues of fact. Accordingly, the Supreme Court properly denied those branches of the HM & M defendants' motion which were for summary judgment dismissing the complaint insofar as asserted against them and dismissing the cross claim against them by B and A (see Kung v. Zheng, 73 AD3d 862, 863; see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853; Zuckerman v. City of New York, 49 N.Y.2d 557, 562).

The Supreme Court granted that branch of the cross motion of the defendants Town of Hempstead, Town of Hempstead Department of Buildings, Brian Nocella, and Mark Schwarz (hereinafter collectively the Town defendants) which was for summary judgment dismissing the complaint insofar as asserted against them. Having done so, the court should have, in turn, denied as academic that branch of the Town defendants' cross motion which was for summary judgment on their cross claim against the HM & M defendants for common-law indemnification (cf. Smith v. South Bay Home Assn., Inc., 102 AD3d 668, 669–670; Ingram v. Long Is. Coll. Hosp., 101 AD3d 814, 816). Moreover, that branch of the HM & M defendants' motion which was for summary judgment dismissing the Town defendants' cross claim against them for common-law indemnification was properly denied because that issue is academic.

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