        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

453
CA 11-01205
PRESENT: SMITH, J.P., LINDLEY, SCONIERS, AND MARTOCHE, JJ.


HEATHER L. BERMINGHAM, PLAINTIFF,

                    V                               MEMORANDUM AND ORDER

THE PETER, SR. & MARY L. LIBERATORE FAMILY
LIMITED PARTNERSHIP, DOING BUSINESS AS
LINCOLN SQUARE APARTMENTS, DEFENDANT.
-------------------------------------------------
THE PETER, SR. & MARY L. LIBERATORE FAMILY
LIMITED PARTNERSHIP, DOING BUSINESS AS
LINCOLN SQUARE APARTMENTS, THIRD-PARTY
PLAINTIFF-RESPONDENT,

                    V

GEARY S. KOPP, DOING BUSINESS AS
S&K LANDSCAPING, THIRD-PARTY DEFENDANT-APPELLANT.


KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (AMANDA L. MACHACEK OF
COUNSEL), FOR THIRD-PARTY DEFENDANT-APPELLANT.

COHEN & LOMBARDO, P.C., BUFFALO (JAMES J. NASH OF COUNSEL), FOR
THIRD-PARTY PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Timothy
J. Drury, J.), entered February 7, 2011. The order, among other
things, granted the motion of third-party defendant for leave to renew
his cross motion for summary judgment, and upon renewal, adhered to
the prior determination denying that cross motion.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting third-party defendant’s
cross motion in part and dismissing the claim for contribution, and as
modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained when she allegedly slipped and fell on black
ice in a parking lot owned by defendant-third-party plaintiff
(defendant). Defendant commenced the third-party action, asserting
claims for, inter alia, common-law indemnification and contribution.
Supreme Court denied defendant’s motion seeking a conditional order of
common-law indemnification against third-party defendant, its snow
removal contractor, and denied third-party defendant’s cross motion
seeking summary judgment dismissing the third-party complaint. The
                                 -2-                           453
                                                         CA 11-01205

third-party action was severed from the main action and, following the
trial of the main action, third-party defendant moved for leave to
renew his cross motion. Although the court purportedly denied the
motion for leave to renew, it is apparent from the decision that the
court actually granted the motion and, upon renewal, adhered to its
original decision.

     We conclude that the court, upon renewal, properly refused to
dismiss the common-law indemnification claim. Even assuming,
arguendo, that third-party defendant requested such relief in his
cross motion and thus that the issue is properly before us (cf. Oneida
Indian Nation v Hunt Constr. Group, Inc., 88 AD3d 1264, 1266), we
conclude that he failed to meet his initial burden of establishing
that plaintiff’s accident was not attributable to his negligent
performance or nonperformance of an act solely within his province
under the contract with defendant (see Abramowitz v Home Depot USA,
Inc., 79 AD3d 675, 677; Trzaska v Allied Frozen Stor., Inc., 77 AD3d
1291, 1293). Contrary to third-party defendant’s contention, we
further conclude that neither the testimony at the trial of the main
action nor the jury verdict following that trial establishes that
defendant’s liability was other than vicarious, i.e., that defendant
was actively negligent (see generally Eastman v Volpi Mfg. USA, Co.,
229 AD2d 913, 913).

     The court erred upon renewal, however, in denying that part of
third-party defendant’s cross motion seeking summary judgment
dismissing the contribution claim. Third-party defendant met his
initial burden of establishing that he did not owe a duty to plaintiff
or a duty to defendant independent of the contract (see Siegl v New
Plan Excel Realty Trust, Inc., 84 AD3d 1702, 1703; Zemotel v Jeld-Wen,
Inc., 50 AD3d 1586, 1587). Third-party defendant further established
that his contract with defendant was not “a comprehensive and
exclusive agreement which entirely displaced [defendant’s] duty to
maintain the premises in a safe condition” (Foster v Herbert Slepoy
Corp., 76 AD3d 210, 214; see Espinal v Melville Snow Contrs., 98 NY2d
136, 140-141). Defendant failed to raise a triable issue of fact in
opposition to that part of the cross motion (see Henriquez v Inserra
Supermarkets, Inc., 89 AD3d 899, 901). We therefore modify the order
accordingly.




Entered:   April 20, 2012                       Frances E. Cafarell
                                                Clerk of the Court
