Dollard v. WB/Stellar IP Owner, LLC

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered November 4, 2011, which denied the motion of second third-party defendant Friends of Greenwich Street, Inc. (Friends) to dismiss the second third-party complaint as against it, unanimously affirmed, without costs.

Plaintiff was injured when she allegedly tripped and fell on a cracked and uneven portion of the sidewalk that abutted a building owned by defendant/second third-party plaintiff WB/Stellar IP Owner, LLC (Stellar). Stellar commenced this second third-party action against, inter alia, Friends and asserted claims for contribution and common-law indemnification.

“In assessing a motion under CPLR 3211 (a) (7) ... a court may freely consider affidavits submitted by the [nonmoving party] to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one” (Leon v Martinez, 84 NY2d 83, 88 [1994] [internal quotation marks and citations omitted]). Here, the court properly concluded that the pleadings together with the affidavit from Stellar’s property manager sufficiently alleged claims for contribution and common-law indemnifica*534tion against Friends. Stellar and its property manager stated that Friends installed, inspected and maintained the portion of the sidewalk on which plaintiff fell and that it did so in a negligent manner (see generally Raquet v Braun, 90 NY2d 177, 182-183 [1997]; see Velez v 19-27 Orchard St. LLC, 70 AD3d 488 [2010]; Peretich v City of New York, 263 AD2d 410, 411 [1999]). Concur — Andrias, J.P., Friedman, Sweeny, Manzanet-Daniels and Román, JJ. [Prior Case History: 2011 NY Slip Op 32921(U).]