Alicea v. Medjugorje Realty, LLC

210 A.D.3d 835

179 N.Y.S.3d 245

Marco Antonio ALICEA, et al., plaintiffs-respondents,

v.MEDJUGORJE REALTY, LLC, et al., defendants-respondents,Imperial Elevator Corporation, defendant fifth-party plaintiff-Appellant-respondent,

New Cingular Wireless, PCS, LLC, et al., defendants third-party plaintiffs-respondents-appellants;

Odyssia Global Communications, third-party defendant/fourth-party plaintiff/fifth-party defendant-respondent;

Preferred Builders, Inc., fourth-party defendant/fifth-party defendant-respondent.

2018–14101, 2018–14828

Index No. 31809/09

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 15, 2022

November 16, 2022

Gallo Vitucci Klar, LLP, New York, NY (Stephen A. Denburg and Kimberly A. Ricciardi of counsel), for defendant fifth-party plaintiff-appellant-respondent.

Landman Corsi Ballaine & Ford, P.C., New York, NY (James M. Woolsey III and Stephen Jacobs of counsel), for defendants third-party plaintiffs-respondents-appellants.

Gary S. Alweiss (Shayne, Dachs, Sauer & Dachs, LLP, Mineola, NY [Jonathan A. Dachs ], of counsel), for plaintiffs-respondents Marco Antonio Alicea and Nicole Alicea.

Scott Baron & Associates, P.C., Howard Beach, NY (Elliot Skydel of counsel), for plaintiff-respondent Jeffrey Drummond.

Margaret G. Klein & Associates (Mischel & Horn, P.C., New York, NY [Scott T. Horn and Lauren E. Bryant ], of counsel), for defendants-respondents Medjugorje Realty, LLC, and MGA Realty, LLC.

Kevin P. Westerman, Elmsford, NY (Jonathan R. Walsh of counsel), for defendants—respondents J.A. Lee Electric, Inc., and J.A. Lee Construction, Inc.

McCarthy & Associates, Melville, NY (Michael D. Kern and David Weiser of counsel), for third-party defendant/fourth-party plaintiff/fifth-party defendant-respondent.

Gerber Ciano Kelly Brady, LLP, White Plains, NY (Laura Ashley Martin and Patrick B. Omilian of counsel), for fourth-party defendant/fifth-party defendant-respondent.

ANGELA G. IANNACCI, J.P., PAUL WOOTEN, DEBORAH A. DOWLING, LILLIAN WAN, JJ.

DECISION & ORDER

In a consolidated action to recover damages for personal injuries, etc., (1) the defendant fifth-party plaintiff appeals, and the defendants third-party plaintiffs cross-appeal, from an order of the Supreme Court, Kings County (David B. Vaughan, J.), dated September 11, 2018, and (2) the defendant fifth-party plaintiff appeals from a judgment of the same court dated October 26, 2018. The order, insofar as appealed from by the defendant fifth-party plaintiff, (a) denied that branch of its motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, (b) granted those branches of the motion of the defendants third-party plaintiffs, and the separate motion of the defendants J.A. Lee Electric, Inc., and J.A. Lee Construction, Inc., which were for summary judgment dismissing the complaint insofar as asserted against each of them and the cross claims asserted against each of them by the defendant fifth-party plaintiff, and (c) granted those branches of the motion of the third-party defendant/fourth-party plaintiff/fifth-party defendant and the separate motion of the fourth-party defendant/fifth-party defendant which were for summary judgment dismissing the fifth-party complaint insofar as asserted against each of them. The order, insofar as cross-appealed from by the defendants third-party plaintiffs, (a) denied that branch of their motion which was for summary judgment on their cross claim for contractual indemnification with respect to attorneys’ fees and costs incurred in the defense of this action, asserted against the defendants J.A. Lee Electric, Inc., and J.A. Lee Construction, Inc., and granted that branch of the motion of the defendants J.A. Lee Electric, Inc., and J.A. Lee Construction, Inc., which was for summary judgment dismissing that cross claim, and (b) denied that branch of the defendants third-party plaintiffs’ motion which was for summary judgment on the third-party cause of action for contractual indemnification, and granted that branch of the motion of the third-party defendant/fourth party plaintiff/fifth-party defendant which was for summary judgment dismissing that third-party cause of action. The judgment, insofar as appealed from, upon the order dated September 11, 2018, in effect, dismissed the fifth-party complaint insofar as asserted against the fourth-party defendant/fifth-party defendant.

By order to show cause dated October 21, 2021, the parties to the appeal and cross appeal from the order dated September 11, 2018, were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal by the defendant fifth-party plaintiff from so much of the order as granted that branch of the motion of the fourth-party defendant/fifth-party defendant which was for summary judgment dismissing the fifth-party complaint insofar as asserted against it, in effect, on the ground that the right of direct appeal from that portion of the order terminated upon entry of the judgment. By decision and order on motion of this Court dated April 13, 2022, the Court's motion was held in abeyance and referred to the panel of Justices hearing the appeals and cross appeal for determination upon the argument or submission thereof.

Upon the order to show cause and the papers filed in response thereto, and upon the argument of the appeals and cross appeal, it is

ORDERED that the motion to dismiss the appeal by the defendant fifth-party plaintiff from so much of the order as granted that branch of the motion of the fourth-party defendant/fifth-party defendant which was for summary judgment dismissing the fifth-party complaint insofar as asserted against it is granted; and it is further,

ORDERED that the appeal by the defendant fifth-party plaintiff from so much of the order as granted that branch of the motion of the fourth-party defendant/fifth-party defendant which was for summary judgment dismissing the fifth-party complaint insofar as asserted against it is dismissed; and it is further,

ORDERED that the appeal by the defendant fifth-party plaintiff from so much of the order as granted those branches of the motion of defendants third-party plaintiffs, and the separate motion of the defendants J.A. Lee Electric, Inc., and J.A. Lee Construction, Inc., which were for summary judgment dismissing the complaint insofar as asserted against each of them is dismissed; and it is further,

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the motion of the defendants third-party plaintiffs which was for summary judgment on their cross claim for contractual indemnification with respect to attorneys’ fees and costs incurred in the defense of this action, asserted against the defendants J.A. Lee Electric, Inc., and J.A. Lee Construction, Inc., and substituting therefor a provision granting that branch of the defendants third-party plaintiffs’ motion, and (2) by deleting the provision thereof granting that branch of the motion of the defendants J.A. Lee Electric, Inc., and J.A. Lee Construction, Inc., which was for summary judgment dismissing that cross claim and substituting therefor a provision denying that branch of the motion of the defendants J.A. Lee Electric, Inc., and J.A. Lee Construction, Inc.; as so modified, the order is affirmed insofar as cross-appealed from by the defendants third-party plaintiffs and insofar as reviewed on the appeal by the defendant fifth-party plaintiff; and it is further,

ORDERED that the judgment is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs, the defendants Medjugorje Realty, LLC, MGA Realty, LLC, J.A. Lee Electric, Inc., and J.A. Lee Construction, Inc., the defendants third-party plaintiffs, the third-party defendant/fourth party plaintiff/fifth-party defendant, and the fourth-party defendant/fifth-party defendant, appearing separately and filing separate briefs, payable by the defendant fifth-party plaintiff, one bill of costs is awarded to the third-party defendant/fourth party plaintiff/fifth-party defendant, payable by the defendants third-party plaintiffs, and one bill of costs is awarded to the defendants third-party plaintiffs, payable by the defendants J.A. Lee Electric, Inc., and J.A. Lee Construction, Inc.

The appeal by the defendant fifth-party plaintiff, Imperial Elevator Corporation (hereinafter Imperial), from so much of the order as granted that branch of the motion of the fourth-party defendant/fifth-party defendant, Preferred Builders, Inc. (hereinafter Preferred), which was for summary judgment dismissing the fifth-party complaint insofar as asserted against it must be dismissed because the right of direct appeal therefrom terminated with the entry of a judgment in the action in favor of Preferred (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from that portion of the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).

Further, Imperial's appeal from so much of the order as granted those branches of the motion of the defendants third-party plaintiffs, New Cingular Wireless PCS, LLC, Bechtel Corporation, and Bechtel Construction Operations Incorporated (hereinafter collectively the Bechtel defendants), and the separate motion of the defendants J.A. Lee Electric, Inc., and J.A. Lee Construction, Inc. (hereinafter together the J.A. Lee defendants), which were for summary judgment dismissing the complaint insofar as asserted against each of them must be dismissed on the ground that Imperial is not aggrieved by those portions of the order (see id. § 5511; Mixon v. TBV, Inc., 76 A.D.3d 144, 904 N.Y.S.2d 132 ).

On June 1, 2007, the plaintiffs Marco Antonio Alicea and Jeffrey Drummond allegedly were injured in an elevator accident on premises owned by ...