Vasquez v. Zion Lutheran Church , 2020 NY Slip Op 05971 ( 2020 )

Vasquez v Zion Lutheran Church (2020 NY Slip Op 05971)

Vasquez v Zion Lutheran Church

2020 NY Slip Op 05971

Decided on October 21, 2020

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 21, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
LEONARD B. AUSTIN, J.P.
JEFFREY A. COHEN
ANGELA G. IANNACCI
LINDA CHRISTOPHER, JJ.

2019-11353
(Index No. 505714/18)

[*1]Aurelia Vasquez, plaintiff-respondent,

v

Zion Lutheran Church, etc., defendant, Metropolitan New York Synod of the Evangelical Lutheran Church in America, defendant-respondent, Lutheran Hospital, et al., appellants, et al., defendant.

Fager, Amsler, Keller & Schoppmann, LLP, East Meadow, NY (William P. Hassett of counsel), for appellants.

Subin Associates, LLP (Pollack, Pollack, Isaac & DeCicco, New York, NY [Brian J. Isaac and Micahel Zhu], of counsel), for plaintiff-respondent.

Jeffrey Samel, New York, NY (Robert G. Spevack of counsel), for defendant-respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Lutheran Hospital and Alvin Berger appeal from an order of the Supreme Court, Kings County (Carl J. Landicino, J.), dated August 28, 2019. The order denied those defendants' motion for summary judgment dismissing the complaint and, in effect, all cross claims insofar as asserted against them as premature.

ORDERED that the order is affirmed, with costs.

On June 23, 2015, the plaintiff allegedly tripped and fell on a height differential between two concrete flagstones on a sidewalk in Brooklyn. The plaintiff subsequently commenced this personal injury action against the defendants Lutheran Hospital and Alvin Berger (hereinafter together the defendants), the tenant and owner, respectively, of the property located at 6317/6319 Fourth Avenue, and the defendant Metropolitan New York Synod of the Evangelical Lutheran Church in America (hereinafter the church), the owner of the property located at 6307 Fourth Avenue. In its answer, the church asserted cross claims against the defendants for contribution and indemnification. The defendants subsequently moved for summary judgment dismissing the complaint and, in effect, all cross claims insofar as asserted against them. The defendants argued, inter alia, that the height differential between the two flagstones, which allegedly caused the plaintiff's fall, did not abut their property. The Supreme Court denied the defendants' motion as premature. The defendants appeal.

The depositions of the parties had yet to occur, and at this stage of the proceedings, the defendants' motion for summary judgment dismissing the complaint and, in effect, all cross [*2]claims insofar as asserted against them was premature (see Pinella v Crescent St. Corp., 176 AD3d 985, 987; Haxhijaj v Ferrer, 166 AD3d 592, 593; Brea v Salvatore, 130 AD3d 956, 957).

Accordingly, we agree with the Supreme Court's determination to deny the defendants' motion for summary judgment dismissing the complaint and, in effect, all cross claims insofar as asserted against them.

AUSTIN, J.P., COHEN, IANNACCI and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court