Preview
FILED: NEW YORK COUNTY CLERK 01/26/2022 03:13 PM INDEX NO. 651602/2020
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/26/2022
Supreme Court of tije etate of Reta Park
Sppellate BMgton, f(rst Jubtetal Bepartment
Giache, J.P., Kern, Friedman, Oing, Singh, JJ.
15026 CAROLYN DISBRow, Index No. 651602/20
Plaintiff-Respondent, Case No. 2021-o1787
-against-
THE NORMANDIE CONDOMINIUM et al.,
Defendañts-Respondents,
HADAS JACOBI,
Defendant-Appellant.
Louis Fogel & Associates, New York (Louis Fogel of counsel), for appellañt.
Herrick Feinstein LLP, New York (Janice I. Goldberg of counsel), for Carolyn Disbrow,
respondent.
Fixler & LaGattuta, LLP, New York (Vincent F. Terrasi of counsel), for The Normandie
Condominium, The Board of MÃ isagers of the Norr f a Condominium and Metro
Manascuscut & Development, Inc., respondents.
Mauro Lilling Naparty LLP, Woodbury (Anthony F. DeStefano of counsel), for Brian
Strong and Keri Strong, respondents.
Order, Sugs cu,e Court, New York County (Laurêñce L. Love, J.), entered
November 6, 2020, which, to the extent appealed from as limited by the briefs, denied
defendant Hadas Jacobi's motions to dismiss the complaint and cross claims against
her, unanimously affirmed, without costs.
Plaintiff seeks damages for property dai21âga caused to her apartment, Unit 2B,
located in the Normandie Cóñdeminium, when a refüñctioning refrigêrator in Unit 6B
leaked water into her unit. On the date of the leak, Unit 6B was owned by defeñdañts
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FILED: NEW YORK COUNTY CLERK 01/26/2022 03:13 PM INDEX NO. 651602/2020
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/26/2022
Brian and Keri and defand ant Jacobi had an option to occupy the
Strong Strong,
apartment pursuant to a possession agreement.
Construed liberally, the cemplaint states a cause of action for negligan ca as
against Jacobi by alleging that she negligently retained defendant repair companies and
failed to supervise their work, (see HimmE L teiñ, McConnell, Doiioghue & Joseph, LLC v
Matthew Bender & Co. Inc., 37 NY3d 169 [2021]; Kleeman v Rheingold, 81 NY2d 270,
273-274 [1993]; Barklee 94 LLC v Oliver, 124 AD3d 459, 461 [1st Dept 2015])·
In view of the foregoing, the motion court correctly declined to dismiss the cross
claim for common-law indemnification and contribution brought against Jacobi by
defendante Normandie Board of Managers of the Normañdie
CGñdaminium,
Condominium and Metro Management and Development, Inc. (see McCarthy v Turner
Constr., Inc., 17 NY3d 369, 374-375 [2011]; see also Schauer v Joyce, 54 NY2d 1, 5
[1981]).
Strongs'
The cross claim against Jacobi states a cause of action for contractual
indemnificatics under the possession agreement, pursuant to which Jacobi agreed to
indemnify the Strongs for claims arising during her occupancy and caused by her
agents, and Jacobi submitted no documents which conclusively establish as a matter of
law that the indeñslification provision does not apply (Himmelstein, McConnell,
Donoghue & Joseph, 37 NY2d at 175). Jacobi's affidavit does not constitute
decamêñtary evidence within the meaning of CPLR 3211(a)(1) (see Johnson v Asberry,
190 AD3d 491 [1st Dept 2021]). In any event, her statement that she quit possession of
Unit 6B a week
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FILED: NEW YORK COUNTY CLERK 01/26/2022 03:13 PM INDEX NO. 651602/2020
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/26/2022
before the leak occurred presents a factual issue not amenable to resolution on a CPLR
3211(a)(7) motion to dismiss (see Tsimerman v Janoff 40 AD3d 242 [1st Dept 2007]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: January 11, 2022
Susanna Molina Rojas
Clerk of the Court
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Preview
FILED: NEW YORK COUNTY CLERK 01/26/2022 03:13 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/26/2022 Supreme Court of tije etate of Reta Park Sppellate BMgton, f(rst Jubtetal Bepartment Giache, J.P., Kern, Friedman, Oing, Singh, JJ. 15026 CAROLYN DISBRow, Index No. 651602/20 Plaintiff-Respondent, Case No. 2021-o1787 -against- THE NORMANDIE CONDOMINIUM et al., Defendañts-Respondents, HADAS JACOBI, Defendant-Appellant. Louis Fogel & Associates, New York (Louis Fogel of counsel), for appellañt. Herrick Feinstein LLP, New York (Janice I. Goldberg of counsel), for Carolyn Disbrow, respondent. Fixler & LaGattuta, LLP, New York (Vincent F. Terrasi of counsel), for The Normandie Condominium, The Board of Mà isagers of the Norr f a Condominium and Metro Manascuscut & Development, Inc., respondents. Mauro Lilling Naparty LLP, Woodbury (Anthony F. DeStefano of counsel), for Brian Strong and Keri Strong, respondents. Order, Sugs cu,e Court, New York County (Laurêñce L. Love, J.), entered November 6, 2020, which, to the extent appealed from as limited by the briefs, denied defendant Hadas Jacobi's motions to dismiss the complaint and cross claims against her, unanimously affirmed, without costs. Plaintiff seeks damages for property dai21âga caused to her apartment, Unit 2B, located in the Normandie Cóñdeminium, when a refüñctioning refrigêrator in Unit 6B leaked water into her unit. On the date of the leak, Unit 6B was owned by defeñdañts 1 of 3 FILED: NEW YORK COUNTY CLERK 01/26/2022 03:13 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/26/2022 Brian and Keri and defand ant Jacobi had an option to occupy the Strong Strong, apartment pursuant to a possession agreement. Construed liberally, the cemplaint states a cause of action for negligan ca as against Jacobi by alleging that she negligently retained defendant repair companies and failed to supervise their work, (see HimmE L teiñ, McConnell, Doiioghue & Joseph, LLC v Matthew Bender & Co. Inc., 37 NY3d 169 [2021]; Kleeman v Rheingold, 81 NY2d 270, 273-274 [1993]; Barklee 94 LLC v Oliver, 124 AD3d 459, 461 [1st Dept 2015])· In view of the foregoing, the motion court correctly declined to dismiss the cross claim for common-law indemnification and contribution brought against Jacobi by defendante Normandie Board of Managers of the Normañdie CGñdaminium, Condominium and Metro Management and Development, Inc. (see McCarthy v Turner Constr., Inc., 17 NY3d 369, 374-375 [2011]; see also Schauer v Joyce, 54 NY2d 1, 5 [1981]). Strongs' The cross claim against Jacobi states a cause of action for contractual indemnificatics under the possession agreement, pursuant to which Jacobi agreed to indemnify the Strongs for claims arising during her occupancy and caused by her agents, and Jacobi submitted no documents which conclusively establish as a matter of law that the indeñslification provision does not apply (Himmelstein, McConnell, Donoghue & Joseph, 37 NY2d at 175). Jacobi's affidavit does not constitute decamêñtary evidence within the meaning of CPLR 3211(a)(1) (see Johnson v Asberry, 190 AD3d 491 [1st Dept 2021]). In any event, her statement that she quit possession of Unit 6B a week 2 2 of 3 FILED: NEW YORK COUNTY CLERK 01/26/2022 03:13 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/26/2022 before the leak occurred presents a factual issue not amenable to resolution on a CPLR 3211(a)(7) motion to dismiss (see Tsimerman v Janoff 40 AD3d 242 [1st Dept 2007]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: January 11, 2022 Susanna Molina Rojas Clerk of the Court 3 3 of 3