SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

453 

CA 11-01205 

PRESENT: SMITH, J.P., LINDLEY, SCONIERS, AND MARTOCHE, JJ. 

 

 

HEATHER L. BERMINGHAM, PLAINTIFF, 

V MEMORANDUM AND ORDER

THE PETER, SR. & MARY L. LIBERATORE FAMILY 

LIMITED PARTNERSHIP, DOING BUSINESS AS 

LINCOLN SQUARE APARTMENTS, DEFENDANT.

------------------------------------------------- 

THE PETER, SR. & MARY L. LIBERATORE FAMILY 

LIMITED PARTNERSHIP, DOING BUSINESS AS 

LINCOLN SQUARE APARTMENTS, THIRD-PARTY 

PLAINTIFF-RESPONDENT,

V

 

GEARY S. KOPP, DOING BUSINESS AS 

S&K LANDSCAPING, THIRD-PARTY DEFENDANT-APPELLANT. 

 

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (AMANDA L. MACHACEK OF

COUNSEL), FOR THIRD-PARTY DEFENDANT-APPELLANT. 

COHEN & LOMBARDO, P.C., BUFFALO (JAMES J. NASH OF COUNSEL), FOR

THIRD-PARTY PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Erie County (Timothy

J. Drury, J.), entered February 7, 2011. The order, among other

things, granted the motion of third-party defendant for leave to renew

his cross motion for summary judgment, and upon renewal, adhered to

the prior determination denying that cross motion.

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by granting third-party defendant’s

cross motion in part and dismissing the claim for contribution, and as

modified the order is affirmed without costs. 

Memorandum: Plaintiff commenced this action seeking damages for

injuries she sustained when she allegedly slipped and fell on black

ice in a parking lot owned by defendant-third-party plaintiff

(defendant). Defendant commenced the third-party action, asserting

claims for, inter alia, common-law indemnification and contribution. 

Supreme Court denied defendant’s motion seeking a conditional order of

common-law indemnification against third-party defendant, its snow

removal contractor, and denied third-party defendant’s cross motion

seeking summary judgment dismissing the third-party complaint. The
-2- 453 

CA 11-01205 

third-party action was severed from the main action and, following the

trial of the main action, third-party defendant moved for leave to

renew his cross motion. Although the court purportedly denied the

motion for leave to renew, it is apparent from the decision that the

court actually granted the motion and, upon renewal, adhered to its

original decision. 

We conclude that the court, upon renewal, properly refused to

dismiss the common-law indemnification claim. Even assuming,

arguendo, that third-party defendant requested such relief in his

cross motion and thus that the issue is properly before us (cf. Oneida

Indian Nation v Hunt Constr. Group, Inc., 88 AD3d 1264, 1266), we

conclude that he failed to meet his initial burden of establishing

that plaintiff’s accident was not attributable to his negligent

performance or nonperformance of an act solely within his province

under the contract with defendant (see Abramowitz v Home Depot USA,

Inc., 79 AD3d 675, 677; Trzaska v Allied Frozen Stor., Inc., 77 AD3d

1291, 1293). Contrary to third-party defendant’s contention, we

further conclude that neither the testimony at the trial of the main

action nor the jury verdict following that trial establishes that

defendant’s liability was other than vicarious, i.e., that defendant

was actively negligent (see generally Eastman v Volpi Mfg. USA, Co.,

229 AD2d 913, 913). 

The court erred upon renewal, however, in denying that part of

third-party defendant’s cross motion seeking summary judgment

dismissing the contribution claim. Third-party defendant met his

initial burden of establishing that he did not owe a duty to plaintiff

or a duty to defendant independent of the contract (see Siegl v New

Plan Excel Realty Trust, Inc., 84 AD3d 1702, 1703; Zemotel v Jeld-Wen,

Inc., 50 AD3d 1586, 1587). Third-party defendant further established

that his contract with defendant was not “a comprehensive and

exclusive agreement which entirely displaced [defendant’s] duty to

maintain the premises in a safe condition” (Foster v Herbert Slepoy

Corp., 76 AD3d 210, 214; see Espinal v Melville Snow Contrs., 98 NY2d

136, 140-141). Defendant failed to raise a triable issue of fact in

opposition to that part of the cross motion (see Henriquez v Inserra

Supermarkets, Inc., 89 AD3d 899, 901). We therefore modify the order

accordingly.

Entered: April 20, 2012 Frances E. Cafarell

Clerk of the Court