By Rivera, J.P.; Dillon, Cohen and Iannacci, JJ.Albert J. Cutler plf, v. Stella J. Thomas, et al., defendants third-party plaintiffs-ap; Claude Staley third-party def-res, et al., third-party def — (Index No. 59436/13) — In an action to recover damages for personal injuries, the defendants third-party plaintiffs appeal from an order of the Supreme Court, Westchester County (David F. Everett, J.), dated October 4, 2017. The order, insofar as appealed from, granted that branch of the motion of the third-party defendants Claude Staley and 9 Cloverdale Lane Corp. which was for summary judgment dismissing the causes of action in the third-party complaint which were for common-law indemnification and contribution insofar as asserted against them.ORDERED that the appeal purportedly taken by the defendant third-party plaintiff Michael P. Thomas is dismissed, without costs or disbursements, and so much of the order as granted that branch of the motion of the third-party defendants Claude Staley and 9 Cloverdale Lane Corp. which was for summary judgment dismissing the third-party complaint insofar as asserted by the defendant third-party plaintiff Michael P. Thomas against them is vacated; and it is further,ORDERED that the order is affirmed insofar as reviewed, with costs to the third-party defendants Claude Staley and 9 Cloverdale Lane Corp.On November 1, 2011, the plaintiff Albert J. Cutler (hereinafter Cutler) was in the process of installing a new boiler in the basement of a home owned by the defendant third-party plaintiff Stella J. Thomas (hereinafter Stella) when he allegedly slipped and fell from a plywood ramp outside the entrance to the basement. Cutler, and his wife suing derivatively, commenced this action against Stella and her deceased husband, the defendant third-party plaintiff Michael P. Thomas (hereinafter Michael), inter alia, to recover damages for personal injuries. After joinder of issue, Stella and Michael commenced a third-party action against, among others, Claude Staley, a contractor who allegedly built the ramp from which Cutler fell, and Staley’s business, 9 Cloverdale Lane Corp. (hereinafter together the Cloverdale defendants), seeking, inter alia, common-law indemnification and contribution. Insofar as relevant to this appeal, the Supreme Court granted that branch of the Cloverdale defendants’ motion which was for summary judgment dismissing the causes of action in the third-party complaint which were for common-law indemnification and contribution insofar as asserted against them.Initially, the appeal purportedly taken by Michael must be dismissed and so much of the order appealed from as pertained to Michael must be vacated as a nullity because he died before the action was commenced (see Gorbaty v. Brodsky, 142 AD3d 584, 585; Aurora Bank FSB v. Albright, 137 AD3d 1177, 1179; Krysa v. Estate of Qyra, 136 AD3d 760; Rivera v. Bruchim, 103 AD3d 700, 700-701; Tiralongo v. City of New York, 41 AD3d 700, 700).We agree with the Supreme Court’s determination to grant that branch of the Cloverdale defendants’ motion which was for summary judgment dismissing the causes of action in the third-party complaint which were for common-law indemnification and contribution insofar as asserted against them by Stella. A party can establish its prima facie entitlement to judgment as a matter of law dismissing a cause of action for common-law indemnification and contribution asserted against it by establishing that it was not at fault in the happening of the subject accident (see State of New York v. Defoe Corp., 149 AD3d 889, 889; Chilinski v. LMJ Contr., Inc., 137 AD3d 1185, 1187-1188; Karanikolas v. Elias Taverna, LLC, 120 AD3d 552, 556; Aragundi v. Tishman Realty & Constr. Co., Inc., 68 AD3d 1027, 1030; Bryde v. CVS Pharmacy, 61 AD3d 907, 909). Here, the Cloverdale defendants presented evidence establishing, prima facie, that the ramp was adequately constructed and that the only theory on which the plaintiffs could possibly recover was one alleging that the ramp was negligently maintained. Since it is undisputed that Stella was exclusively responsible for the maintenance of the ramp, the Cloverdale defendants established, prima facie, that they were not at fault in the happening of Cutler’s accident. In opposition, Stella failed to raise a triable issue of fact. Stella’s argument that the court based its decision to grant summary judgment dismissing the common-law indemnification and contribution causes of action against the Cloverdale defendants by misapplying the doctrine of inconsistent positions is without merit.We note that, although the Supreme Court acknowledged in its order that Michael was deceased at the time of commencement of the action, it failed to take any further steps to remedy jurisdictional defects resulting therefrom. Likewise, the parties have ignored this problem and charted their own course in litigating this matter as if Michael’s death was an irrelevant fact. Inasmuch as the parties and the Supreme Court never addressed whether Michael’s pre-action death impacted Stella’s ability to assert a third-party action as a co-third-party plaintiff, and this issue is not an issue that has ever been addressed or briefed by the parties, we do not address it on this appeal other than to the extent that it deprives this Court of jurisdiction to entertain the appeal insofar as purportedly taken by Michael as indicated herein.RIVERA, J.P., DILLON, COHEN and IANNACCI, JJ., concur.
By Rivera, J.P.; Roman, Cohen and Hinds-Radix, JJ.Renee Fishon, etc., res, v. Richmond University Medical Center, ap — (Index No. 100758/14) — In an action to recover damages for medical malpractice, wrongful death, and violation of the common-law right of sepulcher, the defendant appeals, by permission, from an order of the Supreme Court, Richmond County (Alan C. Marin, J.), dated June 15, 2017. The order granted the plaintiff’s oral application, in effect, to strike the defendant’s answer based on spoliation of evidence and for judgment as a matter of law on the issue of liability. By decision and order on motion dated August 1, 2017, this Court, inter alia, stayed the trial in the action pending hearing and determination of this appeal.ORDERED that the order is reversed, on the law, with costs, the plaintiff’s oral application, in effect, to strike the defendant’s answer and for judgment as a matter of law on the issue of liability is denied, and the defendant’s answer is reinstated.In June 2014, the plaintiff, as administrator of the decedent’s estate, commenced this action to recover damages for medical malpractice, wrongful death, and violation of the common-law right of sepulcher following the decedent’s death on June 16, 2012. During jury selection, the plaintiff made an oral application, in effect, to strike the defendant’s answer and for judgment as a matter of law on the issue of liability based on the defendant’s alleged spoliation of evidence relating to certain telemetry strips and the defendant’s failure to perform an autopsy on the decedent. In opposition, the defendant argued, among other things, that the Supreme Court had previously denied that branch of a prior motion by the plaintiff which was to strike the defendant’s answer based on the defendant’s alleged spoliation of evidence. In the order appealed from, the court granted the plaintiff’s oral application, in effect, to strike the defendant’s answer and for judgment as a matter of law on the issue of liability. The defendant appeals.“A motion for judgment as a matter of law is to be made at the close of an opposing party’s case or at any time on the basis of admissions (see CPLR 4401), and the grant of such a motion prior to the close of the opposing party’s case generally will be reversed as premature even if the ultimate success of the opposing party in the action is improbable” (Burbige v. Siben & Ferber, 89 AD3d 661, 662; see Pipelias v. City of New York, 99 AD3d 685). Here, the plaintiff’s oral application, which was made during jury selection, was not based on any admissions by the defendant, and the Supreme Court should not have considered the merits of the plaintiff’s application at that juncture (see Noriega v. M.A. Angeliades, Inc., 129 AD3d 1043, 1045; Pipelias v. City of New York, 99 AD3d at 685-686; Kamanou v. Bert, 94 AD3d 704).Furthermore, the Supreme Court violated the law of the case doctrine. ”The doctrine of the ‘law of the case’ is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned” (Martin v. City of Cohoes, 37 NY2d 162, 165; see Kaygreen Realty Co., LLC v. IG Second Generation Partners, L.P., 116 AD3d 667, 669; Ramanathan v. Aharon, 109 AD3d 529, 530; Erickson v. Cross Ready Mix, Inc., 98 AD3d 717, 717). The doctrine forecloses reexamination of an issue previously determined by a court of coordinate jurisdiction “absent a showing of newly discovered evidence or a change in the law” (Kaygreen Realty Co., LLC v. IG Second Generation Partners, L.P., 116 AD3d at 669; see Martin v. City of Cohoes, 37 NY2d at 165).Here, the Supreme Court violated the doctrine of law of the case by disregarding the prior order denying that branch of the plaintiff’s earlier motion which was to strike the defendant’s answer based upon the same evidentiary issues (see Aguilar v. Feygin, 151 AD3d 798, 799; Noriega v. M.A. Angeliades, Inc., 129 AD3d at 1045; Fudge v. North Shore-Long Is. Jewish Health Servs. Plainview & Manhasset Hosps., 117 AD3d 783, 785).The parties’ remaining contentions either are without merit or need not be reached in light of our determination.Accordingly, the Supreme Court should have denied the plaintiff’s application, in effect, to strike the defendant’s answer and for judgment as a matter of law on the issue of liability.RIVERA, J.P., ROMAN, COHEN and HINDS-RADIX, JJ., concur.
