Upon the reading and filing of the following papers in this matter:(1) Notice of Motion/Order to Show Cause by the third-party defendant Matthew Hansen, dated February 23, 2017, and supporting papers (including Memorandum of Law dated February 22, 2017);(2) Notice of Motion by the defendant and third-party plaintiff Patchogue Properties, Inc., dated March 10, 2017, supporting papers;(3) Affirmation in Opposition by the plaintiff, dated May 15, 2017, and supporting papers;(4) Affirmation in Opposition by Patchogue Properties, Inc., dated. May 12, 2017, and supporting papers;(5) Affirmation in Opposition by Matthew Hansen, dated April 25, 2017, and supporting papers;(6) Reply Affirmation by Patchogue Properties, Inc., dated July 6, 2017, and supporting papers;(7) Reply Affirmation by Matthew Hansen, dated June, 23, 2017, and supporting papers;and now
*1 UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it isORDERED that the motion (#003) by third-party defendant Matthew Hansen and the motion (#004) by defendant Patchogue Properties, Inc., are consolidated for the purposes of this determination; and it isORDERED that the motion (#004) by defendant Patchogue Properties, Inc. is determined as follows; and it is furtherORDERED that the motion (#003) by third-party defendant Matthew Hansen for summary judgment dismissing the third-party complaint against him is denied, as moot.This is an action to recover damages sustained by plaintiff Brian Reilly as a result of an accident that occurred on July 7, 2012. The accident allegedly occurred while plaintiff was attending an engagement party for his cousin, third-party defendant Matthew Hansen, at the Patchogue Shores Community Center, which is owned and operated by defendant Patchogue Properties, Inc. Plaintiff was injured when he dove into shallow water from a bulkhead or dock. The complaint alleges that defendant Patchogue Properties was negligent in failing to warn of the existence of shallow water by posting proper “no swimming” and “no diving” signs. Thereafter, defendant Patchogue Properties commenced a third-party action against Matthew Hansen seeking contribution and indemnification. Specifically, Patchogue Properties alleges that Hansen, having entered into a contract for the use of the Community Center, agreed to indemnify and defend it from all claims arising out of the use of the property by him and his guests.Patchogue Properties now moves for summary judgment dismissing the complaint against it, arguing that it did not have a statutory obligation to post any warnings, and that plaintiffs reckless conduct was the sole proximate cause of the incident. Patchogue Properties also moves for summary judgment in its favor for contractual indemnification against Hansen, arguing the rental agreement includes such a provision. In support of its motion, Patchogue Properties submit, among other things, copies of the pleadings, transcripts of the parties’ deposition testimony, the community center rental agreement, the police accident report, photographs of the subject premises, an affidavit of Daniel Hogan, and a letter from Nancy Pierson.Plaintiff opposes the motion, arguing that Patchogue Properties had a statutory duty and a common law duty to provide warnings against diving in the subject area. In opposition, plaintiff submits, among other things, his own affidavit and affidavits of Terry Savage, Ann Marie Confessore, and David Steward Smith; photographs of the area where the accident occurred; an affirmation of Dr. Kelly Johnson-Arbor, and a transcript of the deposition testimony of Nancy Pierson.
