The opinion
Minchala v San Remo Tenants' Corp.
2026 NY Slip Op 30942(U)
February 27, 2026
Supreme Court, Kings County
Docket Number: Index No. 521289/2022
Judge: Devin P. Cohen
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.
file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.5212892022.KINGS.001.LBLX038_TO.html[03/20/2026 3:46:01 PM]
!FILED: KINGS COUNTY CLERK 03/11/2026 04:26 P~ INDEX NO. 521289/2022
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 03/11/2026
Supreme Court of the State of New York Index Number 521289/2022
------'--------=----''----'---=--=-=~
County of Kings Seqs.004,005
Part LLlM
MANUEL VIZHCO MINCHALA,
Plaintiff,
against
SAN REMO TENANTS' CORP., DYNAMIC
INSTALLATION CORP., AND AM&G
WATERPROOFING LLC, DECISION/ORDER
Defendants.
SAN REMO TENANTS' CORP.,
Third-Party Plaintiff,
against
KILLOWEN CONSTRUCTION INC. AND GLENDA
MCNEAL,
Third-Party Defendants.
Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this motion, by reference to the
New York State Courts Electronic Filing System docket numbers: NYSCEF 36-52, 55-81.
Upon the foregoing papers, third-party defendant Killowen Construction Inc.
(Killowen)'s motion to, inter alia, dismiss the third-party complaint (Seq. 004) and third-party
defendant Glenda McNeal's motion to dismiss the third-party complaint (Seq. 005) are decided
as follows:
Plaintiff commenced this action to recover for damages he claims to have sustained on
July 5, 2022 while working in an apartment located at 145 Central Park West, New York, NY
(the premises). Plaintiffs note of issue was vacated on June 17, 2025, in order to allow
additional discovery on the issue of plaintiffs alleged traumatic brain injury. Third-party
1
1 of 4
[* 1]
!FILED: KINGS COUNTY CLERK 03/11/2026 04:26 P~ INDEX NO. 521289/2022
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 03/11/2026
defendant Ms. McNeal, as a shareholder, owns the single residential co-operative unit designated
11 B within the premises.
Analysis
A motion to dismiss is not a substitute for a motion for summary judgment, and "whether
the complaint will later survive a motion for summary judgment ... plays no part in the
determination" of a CPLR 3211 motion to dismiss (Shaya B. Pac., LLC v Wilson, Elser,
Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2d Dept 2006]).
To dismiss a claim pursuant to CPLR 3211 (a) (1), the movant must produce documents
that resolve "all factual issues as a matter of law, and conclusively [dispose] of the plaintiffs
claim" (534 K, LLC v Flagstar Bank, FSB, 187 AD3d 971 [2d Dept 2020]; see also Braun Soller
v Dahan, 173 A.D.3d 803, 805 [2d Dept 2019]). Documentary evidence for the purpose of this
statute includes "out-of-court transactions such as mortgages, deeds, contracts, and any other
papers, the contents of which are essentially undeniable" (McDonald v O'Connor, 189 AD3d
1208, 1210 [2d Dept 2020]).
"Under CPLR 3211 (a) (7), the applicable test is whether the pleading states a cause of
action, not whether the proponent of the pleading, in fact, has a meritorious cause of action ...
The court must determine whether, accepting as true the factual averments of the complaint and
according the plaintiff the benefits of all favorable inferences which may be drawn therefrom,
the plaintiff can succeed upon any reasonable view of the facts stated" (Board of Educ. Of City
School Dist. Of City of New Rochelle v County of Westchester, 282 AD2d 561 [2d Dept 2001]).
Common-Law Indemnification and Contribution
Killowen contends that the common-law indemnification and contribution claims against
it must be dismissed pursuant to Workers' Compensation Law (WCL) § 11. However, the
2
2 of 4
[* 2]
!FILED: KINGS COUNTY CLERK 03/11/2026 04:26 P~ INDEX NO. 521289/2022
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 03/11/2026
protection under WCL § 11 contains an exception in cases where plaintiffs have sustained a
grave injury (see e.g. Velazquez-Guadalupe v Ideal Builders and Construction Services, Inc., 216
AD3d 63 [2d Dept 2023]). Here, plaintiff has alleged that he suffered a traumatic brain injury,
and discovery about the nature and extent of that allegation are ongoing. Since a CPLR 3211
motion must be decided on the pleadings, and plaintiff has alleged an injury that may qualify as
"grave" under the WCL, Killowen's motion is denied.
Ms. McNeal seeks dismissal on the basis of the homeowner's exemption under Labor
Law§ 240 (1) and§ 241 (6). Although the Second Department has held that the exemption can
apply to actual-occupant shareholders in possession of co-operative units (Maciejewski v 975
Park Ave. Corp., 37 AD3d 773 [2d Dept 2007]), the exemption does not apply where the
homeowner directed or controlled the work. Moreover, San Remo argues that its claims are
based on Ms. McNeal's negligence, not merely her potential status as a Labor Law defendant. A
party must also show itself free from negligence to prevail on a motion to dismiss a common-law
indemnification or contribution claim (Poalacin v Mall Properties, Inc., 155 AD3d 900, 909 [2d
Dept 2017]). In light of the pleadings, San Remo has not failed to state a cause of action, and
Ms. McNeal's motion is denied.
Contractual Indemnification
The right to contractual indemnification is established by the "specific language of the
contract" (Dos Santos v Power Auth. o_[State o_[New York, 85 AD3d 718, 722 [2d Dept 2011];
quoting George v Marshalls o.f MA, Inc., 61 AD3d 925, 930 [2d Dept 2009]). "In addition, a
party seeking contractual indemnification must prove itself free from negligence, because to the
extent its negligence contributed to the accident, it cannot be indemnified therefor" (Anderson v
United Parcel Serv., Inc., 194 AD3d 675, 678 [2d Dept 2021 ]).
3
3 of 4
[* 3]
!FILED: KINGS COUNTY CLERK 03/11/2026 04:26 P~ INDEX NO. 521289/2022
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 03/11/2026
Killowen argues that its contract only obligates it to indemnify Ms. McNeal and non-
party Brown Harris Stevens Residential Management, LLC (Brown Harris). San Remo argues
that the contract obliges it to indemnify "the Building," and Killowen's certificate of insurance
explicitly identifies San Remo as an additional insured (Al). Although AI status and the
obligation to indemnify are legally distinct, the ambiguities render the document insufficient to
support a CPLR 3211 (a) (1) motion to dismiss.
Ms. McNeal also argues that she did not owe a contractual indemnification obligation to
San Remo. San Remo produced the Preliminary Request for Decorating/Alterations, purportedly
signed by Ms. McNeal, which requires that the "shareholder ... agree that they shall indemnify
and hold San Remo Tenants' Corp .... harmless ... from all cost and expense in connection
therewith" (agreement at 2).
In light of the document that could be interpreted as imposing contractual indemnification
obligations on both Killowen and Ms. McNeal, both parties' motions are denied.
Conclusion
Killowen's motion to dismiss (Seq. 004) is denied; the portions of Killowen's motion
seeking discovery-related relief are denied without prejudice to a new motion made to the
appropriate Part.
Ms. McNeal's motion to dismiss (Seq. 005) is denied.
This constitutes the decision of the court.
February 27, 2026
DATE
~~- DEVIN P. COHEN
Justice of the Supreme Court
4
4 of 4
[* 4]