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Carey v. Capital Cleaning Contractors, Inc.

Supreme Court of New York, First Department

May 21, 2013

Mark Carey, Plaintiff,
v.
Capital Cleaning Contractors, Inc., et al., Defendants-Respondents, New York Foundling Hospital for Pediatric, Medical and Rehabilitative Care, Inc., et al., Defendants-Appellants, New York Foundling Charitable Corporation, Defendants. Capital Cleaning Contractors, Inc., et al., Third-Party Plaintiffs-Respondents, 7 Ocean Group, Inc., Third-Party Defendant-Respondent.

Biedermann Hoenig Semprevivo, New York (Elaine N. Chou of counsel), for appellants.

Catalano Gallardo & Petropoulos, LLP, Jericho (June D. Reiter of counsel), for Capital Cleaning Contractors, Inc., and Capital Cleaning Contractors, Inc., of New York, respondents.

Hirshfield & Costanzo, P.C., White Plains (Joel A. Hirshfield of counsel), for 7 Ocean Group, Inc., respondent.

Mazzarelli, J.P., Sweeny, Freedman, Gische, JJ.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered October 18, 2012, which, to the extent appealed from as limited by the briefs, denied the motion of defendant New York Foundling Hospital for Pediatric, Medical, and Rehabilitative Care (the Hospital) for summary judgment dismissing plaintiff's complaint against it on the ground that it was not the owner of the property in question, and denied the motion of the Hospital and the Vincent J. Fontana Center for Child Protection (the Center) for summary judgment on their cross claims for indemnification from codefendants Capital Cleaning Contractors Inc., Capital Cleaning Contractors Inc. of New York, and 7 Ocean Group Inc., unanimously modified, on the law, to dismiss the complaint as against the Hospital, and otherwise affirmed, without costs.

The parties having conceded that there is no issue of fact concerning the ownership of the premises at 27 Christopher Street, the complaint is dismissed as to the hospital. Accordingly, it is the Center that is responsible, under New York City Administrative Code § 7-210, for keeping the sidewalks clear of snow and ice.

The motion court correctly denied the Center's motion for summary judgment on its cross claims for indemnification against its codefendants, Capital Cleaning Contractors, Inc. and 7 Ocean Group, Inc. There is no basis for 7 Ocean to contractually indemnify the Center, as its contract was with Capital Cleaning, not the Center. On the issue of common law indemnification, the motion court properly determined that issues of fact exist precluding summary judgment.

We have considered the remaining arguments and find them unavailing.


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