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Vilorio v. Suffolk Y Jewish Community Center, Inc.

33 A.D.3d 696 Court N.Y. App. Div. Decision date 2006-10-10 English

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p. 696
Tiberio Vilorio, Plaintiff, v Suffolk Y Jewish Community Center, Inc., et al., Respondents, and Eastern Horizon Landscaping, Inc., Appellant.
[823 NYS2d 101]

In an action to recover damages for personal injuries, the defendant Eastern Horizon Landscaping, Inc., appeals from so much of an order of the Supreme Court, Suffolk County (Werner, J.), dated August 30, 2005, as denied that branch of its motion which was for summary judgment dismissing the cross claim for common-law indemnification against it.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the contention of the defendant Eastern Horizon Landscaping, Inc. (hereinafter Eastern), the Supreme Court properly denied that branch of its motion which was for summary judgment dismissing the cross claim for common-law indemnification against it. Substantial factual issues exist regarding whether Eastern improperly performed its contractual snow plowing duties by piling snow up against a walkway which was adjacent to the parking lot it was plowing, thereby creating an obstacle to pedestrian traffic and facilitating the formation of ice at that location (see generally Knee v Trump Vil. Constr. Corp., 15 AD3d 545 [2005]; Reznicki v Strathallan Hotel, Inc.,

p. 697
12 AD3d 156 [2004]; Karalic v City of New York, 307 AD2d 254 [2003]). “[S]ince there are questions of fact as to whether the accident resulted from [Eastern’s] alleged failure to fulfill its obligations pursuant to the terms of the snow removal contract” (Richter v Hunter’s Run Homeowners Assn., Inc., 14 AD3d 601 , 602 [2005]; see Mitchell v Fiorini Landscape, 284 AD2d 313 , 314 [2001]), the cross claim for common-law indemnification cannot be resolved as a matter of law [see e.g. Peycke v Newport Media Acquisition II, Inc., 17 AD3d 338 [2005]; Franklin v Omni Sagamore Hotel, 5 AD3d 348 [2004]; Baratta v Home Depot USA, 303 AD2d 434 [2003]; Nizam v Friol, 294 AD2d 901 [2002]; Cochrane v Warwick Assoc., 282 AD2d 567 [2001]; Phillips v Young Men’s Christian Assn., 215 AD2d 825 [1995]). Adams, J.E, Goldstein, Mastro and Lifson, JJ., concur.

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