| Baird v Gormley |
| 2014 NY Slip Op 02365 [116 AD3d 1121] |
| April 3, 2014 |
| Appellate Division, Third Department |
| Thomas C. Baird, IV, Appellant, v James M. Gormley etal., Defendants, and Bellamy & Sons Construction Company, Inc., Respondent. |
—[*1] Shantz & Belkin, Latham (Gilah Moses of counsel), for respondent.
Peters, P.J. Appeal from an order of the Supreme Court (McNamara, J.), enteredSeptember 13, 2012 in Albany County, which granted a motion by defendant Bellamy &Sons Construction Company, Inc. for summary judgment dismissing the complaintagainst it.
At approximately 8:00 a.m. on July 3, 2007, plaintiff was operating his motor vehicleon Boght Road in the Town of Colonie, Albany County when his right front tire passedover a manhole that was not properly covered, causing him to lose control of his vehicleand hit a tree. The accident site was adjacent to property owned by defendants James M.Gormley and Maria Gormley, who had retained defendants American Design &Contracting, LLC and Hometown Modular Builders, LLC to construct a modular homethereupon. Hometown contracted with defendant Bellamy & Sons ConstructionCompany, Inc. to connect the Gormleys' property to the public sewer line maintained bydefendant Town of Colonie.
Theorizing that one of the aforementioned defendants had left the manhole openafter either inspecting it or doing work related to the construction of the Gormleys' newhome, plaintiff [*2]commenced this negligenceaction.[FN*] Following joinder of issue, defendants made various motions for summary judgmentdismissing the complaint. While finding that all moving defendants made a prima facieshowing of entitlement to summary judgment and that plaintiff failed to submitevidentiary proof sufficient to raise a question of fact, Supreme Court held such motionsin abeyance pending further disclosure. Thereafter, upon renewal of the motions,Supreme Court granted summary judgment to Hometown and American and, followingBellamy's response to plaintiff's further discovery demands, granted Bellamy's motion ina separate order. Plaintiff appeals from the order granting summary judgment in favor ofBellamy.
The gravamen of plaintiff's complaint against Bellamy is that it created a dangerouscondition around the manhole by removing the cover or leaving it ajar as part of its workin connecting the Gormleys' property to the public sewer line. "A contractor may beliable for an affirmative act of negligence which results in the creation of a dangerouscondition upon a public street or sidewalk" (Losito v City of New York, 38 AD3d 854, 855 [2007];see Brown v Welsbach Corp., 301 NY 202, 205 [1950]; Laymon v Allen, 81 AD3d1298, 1299 [2011]). As the proponent of the motion for summary judgment, it wasincumbent upon Bellamy to " 'make a prima facie showing of entitlement to judgment asa matter of law, tendering sufficient evidence to demonstrate the absence of any materialissues of fact' " (Smalls v AJIIndus., Inc., 10 NY3d 733, 735 [2008], quoting Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]; see Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]).
In support of the motion, Bellamy submitted the affidavit and examination beforetrial testimony of its comptroller, the deposition testimony of its co-vice-president, itsproject manager and the Town's senior civil engineering technician, as well as significantdocumentation. The evidence presented established that Bellamy did not commence workon the Gormley project until August 24, 2007, well after plaintiff's July 3, 2007 accident,and that none of its employees was directed to remove the manhole cover or wasotherwise present at the site prior to this time. Rather, Bellamy's co-vice-president statedthat he first removed the manhole cover to look inside during a site visit with theexcavator in August 2007. In light of this evidence and absent proof that Bellamyexercised control over the subject manhole around the time of plaintiff's accident, weconclude that Bellamy met its initial burden of establishing that it was not responsible forthe dangerous condition of the manhole (see Semzock v State of New York, 97 AD3d 1012, 1013[2012]).
The burden then shifted to plaintiff "to produce evidentiary proof in admissible formsufficient to establish the existence of material issues of fact which require a trial of theaction" (Alvarez v Prospect Hosp., 68 NY2d at 324; see Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]). The absence of direct evidence that Bellamycreated the condition is not necessarily fatal to plaintiff's claim, as he may "show[ ] factsand conditions from which the negligence of [Bellamy] and the causation of the accidentby that negligence may be reasonably inferred" (Schneider v Kings Hwy. Hosp.Ctr., 67 NY2d 743, 744 [1986] [internal quotation marks and citation omitted]; accord Flahive v Union Coll.,99 AD3d 1151, 1153 [2012]; see Seelinger v Town of Middletown, 79 AD3d 1227,1229 [2010]). The proof "must be sufficient to permit a finding based on logicalinferences from the record and not upon speculation alone" (Bloomer v Empire Forklift,Inc., 46 AD3d 1324, 1325 [2007] [internal quotation marks and citations [*3]omitted]; see Gayle v City of New York, 92 NY2d936, 937 [1998]; Schneider v Kings Hwy. Hosp. Ctr., 67 NY2d at 744-745).
Here, plaintiff submitted the affidavit of an individual who stated that he was drivingin the area between 7:00 a.m. and 7:30 a.m. on the morning of the accident and observedat least two (but no more than five) workers around an open manhole with orange safetycones placed around it. Although this motorist was unable to identify these workers asemployees of Bellamy, additional evidence submitted in opposition to the motionestablished that Bellamy was hired to perform the work in connection with the subjectmanhole approximately three weeks earlier, that all of Bellamy's trucks were equippedwith equipment to remove manhole covers, and that all of its employees wereexperienced in removing manhole covers. Testimony further revealed that, prior to theaccident, Bellamy submitted an estimate for the job, the preparation of which wouldtypically entail, among other things, visiting the proposed job site to determine if theproject involved directional boring prior to the commencement of excavation. Just oneweek after plaintiff's accident, Bellamy sent a package of information to the Town thatincluded a plan for the project and a preliminary sketch of the manhole. Notably,testimony from several of Bellamy's officers established that all employees are requiredto prepare daily time sheets documenting, among other things, the specific project beingworked on, and that corporate records would set forth the work performed on a givendate by any of Bellamy's employees. However, in response to plaintiff's demands for suchdocumentation, Bellamy inexplicably failed to provide the time cards for 12 of itsemployees or otherwise account for their whereabouts on the date of plaintiff's accident(compare Amarosa v City ofNew York, 51 AD3d 596, 597 [2008]). Viewing this evidence in the light mostfavorable to plaintiff and affording him the benefit of every favorable inference that maybe drawn therefrom (see Careyv Schwab, 108 AD3d 976, 978 [2013]; Rought v Price Chopper Operating Co., Inc., 73 AD3d1414, 1414-1415 [2010]), we find a triable issue of fact as to whether Bellamy wasresponsible for the dangerous condition of the manhole (see Kennedy v Atlas Fence,Inc., 90 AD3d 1122, 1123-1124 [2011]; Torres v City of New York, 83 AD3d 577 [2011]; DeSilva v City of New York,15 AD3d 252 [2005]; seealso Harris v Niko Dev. Corp., 10 AD3d 410, 410-411 [2004]).
Stein, McCarthy and Rose, JJ., concur. Ordered that the order is reversed, on the law,with costs, and motion denied.
Footnote *: Plaintiff subsequentlydiscontinued the action against the Gormleys and the Town.