Turan v. KMO-361 Realty Assoc., LLC

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Turan v KMO-361 Realty Assoc., LLC 2024 NY Slip Op 33620(U) October 8, 2024 Supreme Court, New York County Docket Number: Index No. 157811/2020 Judge: Leslie A. Stroth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

INDEX NO. 157811/2020 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/11/2024 ... SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LESLIE A. STROTH PART 12M Justice -------X INDEX NO. 157811/2020 GUSTINE AHUMADA TURAN, MOTION DATE N/A Plaintiff, MOTION SEQ. NO. 001 - V -

KMO-361 REALTY ASSOCIATES, LLC,THE NEWYORK RESOURCE CENTER CONDOMINIUM, THE BOARD OF DECISION + ORDER ON MANAGERS OF THE NEW YORK RESOURCE CENTER CONDOMINIUM, MOTION

Defendant. I

-----------------------X I THE NEW YORK RESOURCE CENTER CONDOMINIUM, Third-Party THE BOARD OF MANAGERS OF THE NEW YORK Index No. 595493/2023 RESOURCE CENTER CONDOMINIUM

Plaintiff,

-against-

A&H INSTALLATION INC., GEMINI WATERPROOFING & RESTORATION CORPORATION, HKS CONSTRUCTION GP.

Defendant. ·-----------------------------------·---------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 54, 55, 56, 57, 58, 59,60,61,62,64,68,69 were read on this motion to/for JUDGMENT - DEFAULT

Plaintiff commenced this action for injuries sustained from a trip and fall on June 25,

2019 as a pedestrian in front of the premises located at 365 5th Avenue, New York, NY, owned,

operated, managed and/or maintained by defendants. Third-party plaintiffs The New York

Resource Center Condominium and The Board of Managers of the New York Resource Center

Condominium filed a third-party complaint against third-party defendants A&H Installation Inc.,

157811/2020 TURAN, GUSTINE AHUMADA vs. KMO-361 REALTY ASSOCIATES, LLC ET AL Page 1 of⁴ Motion No. 001

INDEX NO. 157811/2020 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/11/2024

Footnotes

[1] of 4 [* 1] Gemini Waterproofing & Restoration Corporation, and HKS Construction GP filed a third-party complaint for contractual indemnification, common law contribution/indemnification, and breach of contract for failure to procure insurance. Third-party plaintiffs now move here for default judgment against third-party defendants for failure to appear in this action. Pursuant to CPLR §3215(f), "On any application for judgment by default, the applicant shall file proof of service of the summons and the complaint, or a summons and notice ... and proof of the facts constituting the claim, the default and the amount due . . . Any request for a default judgment must include some proof of liability ... to satisfy the court as to the prime facie validity of the uncontested cause of action" (Peffer v Ma/peso, 210 AD2d 60, 61 [1st Dept 1994]). The source of this can be "an affidavit executed by a party with personal knowledge of the merits of the claim" (Beltre v Babu, 32 AD3d 722, 723 [1st Dept 2006]). In support of the motion for default judgment, plaintiff attached affidavits of service (Exh A) to demonstrate that the third-party defendants were served. Letters of default dated August 11, 2023 were also provided (Exh F). As to the merits of the claim, third-party plaintiffs provided an Affidavit of Merit by Peter S. Duncan, president of George Comfort & Sons, Inc., who indicated that "Prior to and on June 25, 2019, George Comfort & Sons, Inc.'s had a management contract with New York Resource Center Condominium" and that "[p ]rior to June 25, 2019, NY Resource Center Condominium c/o George Comfort entered into an agreement with third party defendant Gemini Waterproofing to perform certain construction work at the premises" (Para 5 & 6). The affidavit further provided the following (para 12-15): *On June 25, 2019, A&H Installation Inc., Gemini Waterproofing & Restoration Corporation, and HKS Construction GP. were present at the site performing construction work at the premises. *Prior to June 25, 2019, HKS Construction GP was the original name of the sidewalk shed vendor. HKS Construction GP later changed its name to A&H Installation Inc, and 157811/2020 TURAN, GUSTINE AHUMADA vs. KMO-361 REALTY ASSOCIATES, LLC ET AL Page 2 of 4 Motion No. 001

[2] of 4 [* 2] A&H Installation Inc continued to provide services to the building after the name was changed. *Pursuant to the contracts in effect on June 25, 2019, A&H Installation Inc., Gemini Waterproofing & Restoration Corporation, and HKS Construction GP were responsible for furnishing and maintaining the existing sidewalk pedestrian bridge near the premises and at the alleged accident location which was the entrance way leading into the CUNY Graduate Center, located at 365 5th Avenue, New York, New York and ensuring ingress and egress into the building was safe for all persons. *The alleged incident that forms the basis of plaintiffs claims arose out or the resulted from the work performed pursuant to the agreements between NY Resource Center Condominium /George Comfort and A&H Installation Inc., Gemini Waterproofing & Restoration Corporation, and HKS Construction GP in covering the entrance way to the CUNY Graduate Center located at 365 5th Avenue, New York, New York and obscuring its view from people entering the building. Third-party plaintiffs also attached an Agreement dated July 11, 2018 between third-party plaintiff NY Resource Center Condominium c/o George Comfort & Sons, Inc. and third-party defendant Gemini Waterproofing and Restoration Corporation (Exh D), as well as an Agreement between Gemini Waterproofing and third-party defendant A&H Installation dated February 22, 2020. The Agreement dated July 11, 2018 contained an indemnification and insurance clause (Exh D, p 29), which included the following: To the fullest extent permitted by law, Contractor shall defend, indemnify and hold harmless the Owner, George Comfort & Sons, Inc. ("Owner's Agent") ... from and against any and all claims, suits, damages, losses, costs and expenses ... arising out of or in connection with (i) the performance of the Services, (ii) this Agreement and/or Contractor's breach of any covenant, representation or warranty contained herein, (iii) entry onto the Project site, and (iv) any negligent act or omission of Contractor or Contractor's employees, agents, subcontractors, suppliers, workers, invitees, successors and assigns ... The following insurance is to be provided by Contractor at its expense. A certificate of insurance evidencing the coverages required herein and endorsements showing all of the Owner Parties as additional insureds (except for Workers' Compensation) and waiver of subrogation must be presented to Owner's Agent by Contractor and each of Contractor's subcontractors, in form and content satisfactory to Owner's Agent prior to commencing Services and prior to receiving any payments or being permitted access to the Project Site ... 157811/2020 TU RAN, GUSTINE AHUMADA vs. KMO-361 REALTY ASSOCIATES, LLC ET AL Page 3 of 4 Motion No. 001

[3] of 4 [* 3] The Agreement dated February 22, 2020 also contained an indemnity and insurance clause (Exh E, p 2-3): "In consideration of the Contract Agreement, and to the fullest extent permitted by law, the Subcontractor shall defend and shall indemnify, and hold harmless, at Subcontractor's sole expense, Gemini Waterproofing and Restoration Corp ... The Subcontractor shall procure and shall maintain such insurance as will protect the Contractor, owner and their officers, directors, agents and employees, for claims arising out of or resulting from Subcontractor's Work under this Contract Agreement." No opposition has been provided. In view of the foregoing, third-party plaintiffs motion for default judgment against third-party defendants. Accordingly, it is hereby ORDERED, that motion #001 by third-party plaintiffs The New York Resource Center Condominium and The Board of Managers of the New York Resource Center Condominium against third-party defendants A&H Installation Inc., Gemini Waterproofing & Restoration Corporation, and HKS Construction GP for default judgment is granted, and that damages shall be determined during trial. The foregoing constitutes the decision and order of the Court. DA TE: 10/8/2024 t-lON. LltSU&ATif91~0TH J,Q,g, ~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE 157811/2020 TURAN, GUSTINE AHUMADA vs. KMO-361 REALTY ASSOCIATES, LLC ET AL Page 4 of 4 Motion No. 001

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