2737. DEAN OROFINO, PLAINTIFF, v. 388 REALTY OWNERS, LLC def-ap, ADELHARDT CONSTRUCTION CORPORATION, def-res — 388 REALTY OWNERS, LLC THIRD-PARTY PLAINTIFFS, v. ADCO ELECTRICAL CORPORATION, Third-Party def — ADELHARDT CONSTRUCTION CORPORATION, Second Third-Party plf-res, v. BIORDI, INC. Second Third-Party def-res, BIORDI, INC., Third Third-Party plf-res, v. MOURNE MANAGEMENT CORP., Third Third-Party def-res — Perry, Van Etten, Rozanski & Priavera LLP, Melville (Elizabeth Gelfand Kastner of counsel), for ap — Barry, McTiernan & Moore LLC, New York (Laurel A. Wedinger of counsel), for Biordi Inc., res — Law Office of James J. Toomey, New York (Eric P. Tosca of counsel), for Adelhardt Construction Corporation, res — Nicoletti Gonson Spinner LLP, New York (Laura M. Mattera of counsel), for Interstate Mechanical Services, Inc., res — Cascone & Kluepfel, LLP, Garden City (James K. O’Sullivan of counsel), for Mourne Management Corp., res — Order, Supreme Court, New York County (Paul Wooten, J.), entered January 6, 2016, which granted the motions by Adelhardt Construction Corporation, Biordi, Inc., Mourne Management Corp., and Interstate Mechanical Services, Inc. for summary judgment dismissing all claims and cross claims against them, unanimously modified, on the law, to deny Interstate’s motion as to defendants 388 Realty Owners LLC, CityGroup Global Markets, Inc., and SL Green Realty Corp.’s (collectively, 388 Realty) claims for common-law indemnification and contribution as against it, and otherwise affirmed, without costs.
Mourne established prima facie that it did not create the condition that caused plaintiff’s fall on December 18, 2009, by submitting the deposition testimony of its principal, who testified that Mourne finished building the wall around December 8, left the work area spotless and free of debris before leaving that day, and did not return to the job site to perform caulking work until January 2010 (see CPLR 3212[b]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). This proof that Mourne was not on site on the day of the accident is supported by other record evidence, including the testimony of Biordi’s principal. 388 Realty failed to raise a triable issue of fact (see id.). In light of Mourne’s unrebutted proof warranting dismissal of the claims asserted against it, the claims against Biordi, which had subcontracted all its work to Mourne and was never on site, were also correctly dismissed.
