Spanbock v. Fifty Fourth Street Condominium , 771 N.Y.S.2d 10 ( 2004 )

Order, Supreme Court, New York County (Marylin Diamond, J.), entered January 2, 2003, which denied the motion of defendants The Fifty Fourth Street Condominium and the Board of Managers of The Fifty Fourth Street Condominium and the cross motion of defendants 54 Satellite Co. LLC, Allen S. Green, Buchbinder and Warren, LLC, Norman Buchbinder and Eugene Warren for summary judgment, unanimously affirmed, without costs.

According to the complaint, plaintiff sustained injuries when a negligently installed air conditioner located in a third-floor window of an apartment in defendant condominium’s building fell upon her. The motion by the condominium defendants and cross motion by the managing agent defendants for summary judgment were properly denied in light of triable issues as to whether the air conditioner in question was, in fact, negligently installed, whether the moving defendants had constructive notice of any such negligence (see Giuffrida v Metro N. Commuter R.R. Co., 279 AD2d 403 [2001]), and whether any negligence on their part was a proximate cause of the. accident (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]). Nor were the moving defendants entitled to summary judgment upon their cross claims for contractual indemnification against defendant Chen, the owner of the apartment from which the air conditioner fell. While the moving defendants seek to rely on an indemnification provision contained in an alterations agreement signed by Chen, that provision only applies where damages are incurred “as a result of the work” covered by the alterations agreement. It is not clear, as a matter of law, that plaintiffs injuries are indeed attributable to such work. Finally, the managing agent defendants were not entitled to summary judgment upon their cross claim against the condominium defendants since their claim is premised upon provisions of the management agreement, which has not been included in the record. Concur—Tom, J.P., Williams, Marlow and Gonzalez, JJ.