Opinion

Turan v. KMO-361 Realty Assoc., LLC

  • 2024 NY Slip Op 33620(U)
Court
New York Supreme Court, New York County
Filed
Oct 8, 2024
Status
Unpublished
Author
Leslie A. Stroth
Cited by
0 cases
Authority
More cited than 30.8%

The opinion

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

1 of 4

[* 1]

INDEX NO. 157811/2020

NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/11/2024

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]

INDEX NO. 157811/2020

NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/11/2024

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]

INDEX NO. 157811/2020

NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/11/2024

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

4 of 4

[* 4]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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