Atlantic defendant in New York

2014On a motion to dismiss a pleading pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the nonmoving party the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]).

2014On a motion to dismiss a pleading pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the nonmoving party the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]).

2014As the appellants correctly contend, although there is no longer a direct action pending against Atlantic, the appellants’ cross claims may be maintained in a third-party action under the circumstances of this case (see Baten v Northfork Bancorporation, Inc., 85 AD3d 697, 698-699 [2011]; Nelson v Chelsea GCA Realty, Inc., 18 AD3d 838, 839 [2005]).

2014As the appellants correctly contend, although there is no longer a direct action pending against Atlantic, the appellants’ cross claims may be maintained in a third-party action under the circumstances of this case (see Baten v Northfork Bancorporation, Inc., 85 AD3d 697, 698-699 [2011]; Nelson v Chelsea GCA Realty, Inc., 18 AD3d 838, 839 [2005]).

2014On a motion to dismiss a pleading pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the nonmoving party the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]).

2014On a motion to dismiss a pleading pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the nonmoving party the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]).

2014As the appellants correctly contend, although there is no longer a direct action pending against Atlantic, the appellants’ cross claims may be maintained in a third-party action under the circumstances of this case (see Baten v Northfork Bancorporation, Inc., 85 AD3d 697, 698-699 [2011]; Nelson v Chelsea GCA Realty, Inc., 18 AD3d 838, 839 [2005]).

2014As the appellants correctly contend, although there is no longer a direct action pending against Atlantic, the appellants’ cross claims may be maintained in a third-party action under the circumstances of this case (see Baten v Northfork Bancorporation, Inc., 85 AD3d 697, 698-699 [2011]; Nelson v Chelsea GCA Realty, Inc., 18 AD3d 838, 839 [2005]).

2026There was no indemnification agreement between Superior and Atlantic in effect at the time of the accident and no evidence that the indemnification provision contained in the parties' written agreement executed approximately one month after the accident was intended to apply retroactively ( see Podhaskie v Seventh Chelsea Assoc. , 3 AD3d 361, 362 [1st Dept 2004]).

2026The certificate of liability insurance is insufficient to prove that plaintiff was an additional insured because "[a] certificate of insurance is only evidence of a carrier's intent to provide coverage but is not a contract to insure the designated party nor is it conclusive proof, standing alone, that such a contract exists" ( Tribeca , 5 AD3d at 200).

2025"A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident" ( McPhaul-Guerrier v Leppla , 201 AD3d 920, 921 [internal quotation marks omitted]; see Galloway v Lux Credit Consultants, LLC , 224 AD3d 891 , 892).

2024DISCUSSION "It is well settled that 'the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact."' (Pullman v Silverman, 28 NY3d 1060 , 1062 [2016], quoting Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]).

2014“Unless a statute or ordinance clearly imposes liability upon an abutting landowner, only a municipality may be held liable for the negligent failure to remove snow and ice from a public sidewalk” (Hilpert v Village of Tarrytown, 81 AD3d 781, 781 [2011]; see Smalley v Bemben, 12 NY3d 751 [2009]; Schwint v Bank St.

2014“Unless a statute or ordinance clearly imposes liability upon an abutting landowner, only a municipality may be held liable for the negligent failure to remove snow and ice from a public sidewalk” (Hilpert v Village of Tarrytown, 81 AD3d 781, 781 [2011]; see Smalley v Bemben, 12 NY3d 751 [2009]; Schwint v Bank St.

2014A plaintiff cannot, for the first time in opposition to a motion for summary judgment, raise a new or materially different theory of recovery against a party from those pleaded in the complaint and the bill of particulars (see Mezger v Wyndham Homes, Inc., 81 AD3d 795 [2011]; Pinn v Baker’s Variety, 32 AD3d 463 [2006]; Yaeger v UCC Constructors, 281 AD2d 990, 991 [2001]; Otonoga v City of New York, 234 AD2d 592, 593 [1996]; cf. Rosse-Glickman v Beth Israel Med.

2014A plaintiff cannot, for the first time in opposition to a motion for summary judgment, raise a new or materially different theory of recovery against a party from those pleaded in the complaint and the bill of particulars (see Mezger v Wyndham Homes, Inc., 81 AD3d 795 [2011]; Pinn v Baker’s Variety, 32 AD3d 463 [2006]; Yaeger v UCC Constructors, 281 AD2d 990, 991 [2001]; Otonoga v City of New York, 234 AD2d 592, 593 [1996]; cf. Rosse-Glickman v Beth Israel Med.