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]