Leonard v Capital One Fin. Corp., 2015 NY Slip Op 01423 [125 AD3d 818]

February 18, 2015

Appellate Division, Second Department

[*1]

Eleanor Leonard, Respondent,

v

Capital One Financial Corp., Defendant/Third-Party Plaintiff-Respondent, and MacKenzie Group, Inc. Defendant/Third-Party Defendant-Appellant.

McMahon, Martine & Gallagher, LLP, Brooklyn, N.Y. (Andrew D. Showers of counsel), for defendant/third-party defendant-appellant.

Louis C. Fiabane, New York, N.Y. (Stanislav I. Ladnik of counsel), for plaintiff-respondent.

James J. Toomey, New York, N.Y. (Evy L. Kazansky of counsel), for defendant/third-party plaintiff-respondent.

In an action to recover damages for personal injuries, the defendant MacKenzie Group, Inc., appeals from so much of an order of the Supreme Court, Kings County (Velasquez, J.), dated October 2, 2013, as denied its cross motion for summary judgment dismissing the complaint and cross claims insofar as asserted against it and dismissing the third-party complaint.

Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs, and the cross motion of the defendant MacKenzie Group, Inc., for summary judgment dismissing the complaint and cross claims insofar as asserted against it and dismissing the third-party complaint is granted.

The plaintiff allegedly was injured when he tripped and fell over a dangerous and defective door saddle at a bank branch of the defendant Capital One Financial Corp. (hereinafter the bank). The plaintiff commenced this action against the bank. The bank then commenced a third-party action against MacKenzie Group, Inc. (hereinafter MacKenzie), which had performed work on various doors and door saddles at the bank, and the plaintiff then added MacKenzie as a defendant. MacKenzie moved for summary judgment dismissing the complaint and cross claims insofar as asserted against it and dismissing the third-party complaint. The Supreme Court denied the motion. We reverse.

MacKenzie established its prima facie entitlement to judgment as a matter of law by showing that it did not install or repair the particular saddle on which the plaintiff tripped ( see Miller v Infohighway Communications Corp. , 115 AD3d 713 [2014]). In opposition, the plaintiff and the bank failed to raise a triable issue of fact ( see generally Alvarez v Prospect Hosp. , 68 NY2d 320 [1986]; [*2] Zuckerman v City of New York , 49 NY2d 557 [1980]).

The plaintiff’s remaining contentions are without merit.

Accordingly, the Supreme Court erred in denying MacKenzie’s motion for summary judgment. Skelos, J.P., Dickerson, Chambers and Sgroi, JJ., concur..