By: Acosta, P.J., Renwick, Manzanet-Daniels, Kapnick, Webber, JJ.751. PEOPLE, res, v. Kerri Roberts, def-ap — Robert S. Dean, Center for Appellate Litigation, New York (John Vang of counsel), for ap — Cyrus R. Vance, District Attorney, New York (Alice Wiseman of counsel), for res — Upon remittitur from the Court of Appeals (__ NY3d __, 2018 NY Slip Op 03172 [2018]), judgment, Supreme Court, New York County (Carol Berkman, J. at suppression hearing; Roger S. Hayes, J. at jury trial and sentence), rendered June 7, 2013, convicting defendant of criminal possession of a forged instrument in the second degree (two counts) and identity theft in the second degree, and sentencing him, as a second felony offender, to an aggregate term of three to six years, unanimously affirmed.Defendant was charged with two counts of criminal possession of a forged instrument in the second degree and one count of identity theft in the second degree in connection with allegations that he had attempted to purchase over $1,000 worth of merchandise at a Champs Sports store in Times Square using a counterfeit New Jersey State driver’s license and American Express card, both imprinted with the fictitious name “Craig E. Jonathan.” The license featured defendant’s photograph. When the machine at the store was unable to read the card, defendant insisted that the cashier enter the card manually. The manager told defendant that he knew the card was fraudulent and would call the police if defendant refused to leave. Defendant continued but never succeeded in buying the goods.After defendant’s arrest outside of the store, the police searched him and found identification bearing his true name. They also found a scrap of paper listing various account numbers and associated codes. Defendant admitted that he paid someone for the fake credit card and driver’s license. ”Craig E. Jonathan” was a fabricated identity. The State of New Jersey had no such person in its records.At trial, defendant moved to dismiss the identity theft count, asserting that he was purporting to be Craig E. Jonathan and not the actual credit card account holder. The trial court denied the motion, and defendant was convicted as indicated.On appeal, we modified to the extent of vacating the conviction for identity theft, and otherwise affirmed (138 AD3d 461 [1st Dept 2016]). We reasoned that in order to establish the crime, a defendant had to both use the victim’s personal identifying information and assume the victim’s identity. We reasoned that while defendant had used the victim’s personal identifying information, he had not assumed her identity, but rather, that of a fictitious person.The Court of Appeals reversed, reasoning that defendant had assumed the identity of the victim within the meaning of the statute. The Court rejected defendant’s argument that “the requirement that a defendant assumes the identity of another is not a separate element of the crime,” explaining that the statutory language “simply summarizes and introduces the three categories of conduct through which an identity may be assumed” (Slip Op at 5).The Court remitted the case for consideration of the facts and issues raised but not determined on the appeal (CPL 470.25[2][d]; 470.40[2][b]).We find that defendant’s conviction of identity theft in the second degree was not against the weight of the evidence (see People v. Bleakley, 69 NY2d 490 [1987]). The fact that the store manager was fired for letting a customer use his employee discount does not render his testimony incredible. The allegedly faulty memories of nonexpert witnesses concerning the appearance of the counterfeit card were immaterial. The minor inconsistencies that defendant cites to, and which the witnesses admitted were the result of faulty memory, did not render the verdict against the weight of the evidence (see People v. Danielson, 9 NY3d 348 [2007]). Rather, each witness’s testimony was generally corroborative of each other’s, and was also corroborated by the surveillance videos. Further, a representative from American Express testified at length concerning the factors demonstrating that defendant’s card was a fake.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By: Friedman, J.P., Manzanet-Daniels, Kapnick, Kern, Singh, JJ.4583. PEOPLE, res, v. David J. Palmer, def-ap — An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, Bronx County (Patricia Di Mango, J. at plea; Michael Gross, J. at sentencing), rendered December 17, 2013,And said appeal having been argued by counsel for the respective parties; and due deliberation having been had thereon, and upon the stipulation of the parties hereto dated June 13, 2018,It is unanimously ordered that said appeal be and the same is hereby withdrawn in accordance with the terms of the aforesaid stipulation.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
By: Manzanet-Daniels, J.P., Gische, Andrias, Kern, Singh, JJ.4901. Anthony Farrugia, plf-res, v. 1440 Broadway Associates Defendants-res-ap, Harbour Mechanical Corp., Defendant-Appellant-res, The Martin Group, LLC def — [And a Third-Party Action] Westerman Sheehy Keenan Samaan & Aydelott, LLP, Uniondale (Joanne Emily Bell of counsel), for appellant-res — Pollack, Pollack, Isaac & De Cicco, LLP, New York (Jillian Rosen of counsel), for res — London Fischer LLP, New York (Brian A. Kalman of counsel), for respondents-ap — Order, Supreme Court, New York County (Ellen M. Coin, J.), entered September 15, 2016, which, to the extent appealed from as limited by the briefs, denied defendant Harbour Mechanical Corp.’s motion for summary judgment dismissing the complaint and cross claims of defendants 1440 Broadway Associates, 1440 Broadway Owner, LLC and 1440 Broadway Mgt., LLC (collectively, the property owner), as against it, and denied the property owner’s motion for summary judgment dismissing the complaint as against them, affirmed, without costs.Plaintiff, an operating engineer, contends that while working in the pump room of the property owner’s building, he was injured when he stepped into an exposed opening or hole in a metal plate1 that caused him to fall. Harbour Mechanical was a contractor that the property owner retained to convert its building from a gas heating system to a Con Ed “clean steam station” (the conversion project). Plaintiff claims that Harbour, while working on the project, which included removal of an oil tank and other equipment, caused, created, exacerbated or “launche[d] a force or instrument of harm” when it removed the tank and left a large opening in the metal plate exposed (Espinal v. Melville Snow Contrs., 98 NY2d 136, 140 [2002]). Plaintiff contends that the opening was not dangerous until the oil tank was removed because the opening had been beneath the equipment (see Miller v. City of New York (100 AD3d 561 [1st Dept 2012]).We find that Supreme Court correctly denied Harbour’s motion for dismissal of the complaint and cross claims against it, as well as the property owner’s motion for summary judgment dismissing the complaint. Defendants failed to demonstrate their entitlement to judgment as a matter of law (see Lopez v. New York Life Ins. Co., 90 AD3d 446 [1st Dept 2011]). Moreover, there are issues of fact whether the exposed opening in the metal plate was open and obvious and not otherwise inherently dangerous (see generally Powers v. 31 E 31 LLC, 123 AD3d 421 [1st Dept 2014]).Plaintiff testified at his deposition that on the day of the accident he was working in the building’s pump room, repairing a valve on equipment that was only three or four steps away from an exposed opening in a metal plate on the floor. While facing the equipment he was working on, plaintiff stepped back to reach for a tool. As he did so, he stepped into an exposed circular opening in the metal plate, causing him to fall backwards and strike his head on the concrete floor.Plaintiff’s claim against the property owner is that it failed to maintain its property in a reasonably safe condition because the opening was a dangerous condition of which it had notice, but failed to take remedial measures (see Basso v. Miller, 40 NY2d 233, 241 [1976]). Plaintiff testified that when he first noticed the exposed opening, a few months before his accident, he took a picture of it with his cell phone and showed it to property owner’s manager (Kohlbrecher). Kohlbrecher told plaintiff that he was busy at the moment, but that later he would take a look at the condition for himself.Plaintiff’s claim against Harbour is that when it removed the old fuel tank that was situated on the metal plate, Harbour launched a force or instrument of harm by creating a dangerous condition or making the condition less safe than it was before Harbour did its work. Harbour concedes that it removed a tank and other equipment during the conversion project and that the tank was to be serviced. It denies, however, that it made any structural changes to the metal plate or that the metal plate was inherently dangerous. Harbour maintains that the metal plate and any opening in it, once exposed, was open and obvious, particularly since plaintiff knew it was there and even took a photo of it.Alternatively, Harbour argues it did not owe plaintiff, a noncontracting third party, a duty of care, and that even if it did expose an opening in the metal plate when it removed the oil tank, it cannot be held liable in negligence for merely doing the work it was contractually retained to do. Harbour denies that under the terms of its contract it had any contractual obligation to cover up, remediate or protect any opening it made when removing equipment from the pump room, and that the property owner and/or subcontractors were responsible for doing so. Harbour contends that it cannot be found to have caused or created a dangerous condition or have launched a force of harm because it did not make the exposed opening in the metal plate any less safe than it was before its removal of equipment from the pump room.Although both defendants argue that the exposed opening in the metal plate was open, obvious, readily observable and known to plaintiff, a property owner has a nondelegable duty to maintain its premises in a reasonably safe condition, taking into account the forseeability of injury to others (Basso, 40 NY2d at 241). Moreover, although a defect or hazard may be discernable, this does not end the analysis, or compel a determination in favor of the property owner (Westbrook v. WR Activities-Cabrera Mkts., 5 AD3d 69, 72 [1st Dept 2004]). Plaintiff’s awareness of a dangerous condition does not negate a duty to warn of the hazard, but only goes to the issue of comparative negligence (Francis v. 107-145 W. 135th St. Assoc., Ltd. Partnership, 70 AD3d 599, 600 [1st Dept 2010]). Given the exposed opening’s proximity to equipment that required service, the circumstances of plaintiff’s accident present an issue of fact of not only whether the condition was open and obvious, but also whether it was inherently dangerous (see Westbrook, 5 AD3d at 69, 71-73; Rubin v. Port Auth. of N.Y. & N.J., 49 AD3d 422, 422 [1st Dept 2008]). Some hazards, although discernable, may be hazardous because of their nature and location (see Westbrook at 72). Defendants did not establish that the exposed opening – given its location in the floor near other mechanical equipment in the pump room – was not only open and obvious, but that there was no duty to warn, and that the condition was not inherently dangerous (see Cupo v. Karfunkel, 1 AD3d 48, 51-52 [2d Dept 2003]).A contractual obligation, standing alone, will not give rise to tort liability in favor of a noncontracting third party (Espinal 98 NY2d at 138]). One exception to this broad rule is where the contracting party, in failing to exercise reasonable care in the performance of his duties, “launche[s] a force or instrument of harm” (Espinal at 140). We depart from the dissent in finding that Harbour failed to make a prima facie showing that it did not owe plaintiff a duty of care and that it did not negligently cause, create or exacerbate a dangerous condition.Even if Harbour’s contract did not require that it cover, remediate, fill in or repair any of the floor openings resulting from its work, Harbour did not take even minimal corrective measures to protect the exposed opening in the floor after it removed the obsolete oil tank. Thus, while its removal of the tank was in fulfillment of its contractual obligation, a reasonable jury could find that Harbour’s leaving an exposed and unprotected opening in the floor exposed, caused or created a dangerous condition even if previously the metal plate containing the opening was not unsafe. The dissent’s view relies on cases where the defendant did not owe a duty of care because the condition the plaintiff complained of was precisely what was called for in the defendant’s contract (Fung v. Japan Airlines Co., Ltd., 9 NY3d 351 [2007]; Peluso v. ERM, 63 AD3d 1025 [2d Dept 2009]; Miller v. City of New York, 100 AD3d 561 [1st Dept 2012]; Agosto v. 30th Place Holding, LLC, 73 AD3d 492, 492-493 [1st Dept 2010]). We take no issue with Harbour’s argument, and the dissent’s view, that Harbour was contractually obligated to remove the tank and that it fulfilled its contract by doing so. Our view, however, is that while the metal plate and its opening were under the tank, they were not a hazard because the tank prevented, or at least made it difficult, for anyone to step into that area. However, once the tank was removed, and the opening below it exposed, the metal plate and its opening were no longer protected. There is a view of the facts that Harbour, by leaving the exposed opening without any kind of warning or minimal protection, created or caused an unsafe condition, or made the previously obscured opening in the metal plate “less safe” than before Harbour did its work (see Timmins v. Tishman Constr. Corp., 9 AD3d 62, 67 [1st Dept 2004], lv dismissed 4 NY3d 739 [2004]; cf. Santos v. Daniello Carting Co., LLC, 148 AD3d 463, 464 [1st Dept 2017], lv denied 30 NY3d 903 [2017]). Thus the issue is not whether Harbour had a contractual obligation to protect the opening, but whether by leaving the opening in the metal plate exposed it created an unreasonable risk of harm to the plaintiff.Harbour’s motion for summary judgment dismissing the owner’s cross claims against it was properly denied because the same issues of fact preclude summary dismissal of 1440 Broadway’s cross claim as against Harbour for common-law indemnification and/or contribution (see Scuderi v. Independence Community Bank Corp., 65 AD3d 928 [1st Dept 2009]. The operative indemnification provision is written in broad terms, providing, in relevant part, that “TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,” Harbour must “INDEMNIFY, PROTECT, DEFEND AND HOLD HARMLESS OWNER… FOR, FROM AND AGAINST ALL LIABILITIES… DIRECTLY OR INDIRECTLY ARISING OUT OF, CAUSED BY, OR RESULTING FROM (IN WHOLE OR IN PART), [1] THE WORK PERFORMED HEREUNDER… ” by Harbour or any of its subcontractors. Such indemnification is triggered when the claim arises out of the contractor’s work even though the subcontractor has not been negligent (see e.g. Brown v. Two Exch. Plaza Partners, 76 NY2d 172 [1990]). Contrary to Harbour’s argument, the indemnification provision does not run afoul of General Obligations Law §5-322.1 because the limitation it contains (“TO THE FULLEST EXTENT PERMITTED BY LAW”) obligates Harbour to only indemnify the owner to the extent that plaintiff’s accident arose out of Harbour’s and its contractor’s work, except for that percentage of negligence attributable to the owner. Consequently, the owner will not be indemnified for its own negligence (see e.g. Brown v. Two Exch. Plaza Partners, supra).We have considered the parties’ remaining arguments for affirmative relief and find them unavailing.All concur except Andrias and Singh, JJ. who dissent in part in a memorandum by Andrias, J. as follows:
