| Grant v Caprice Mgt. Corp. |
| 2007 NY Slip Op 06759 [43 AD3d 708] |
| September 18, 2007 |
| Appellate Division, First Department |
| Gina Grant, Respondent, v Caprice ManagementCorporation et al., Defendants, and Capris & Capri Window Corp.,Appellant. |
—[*1] Sullivan Papain Block McGrath & Cannavo P.C., New York (Stephen C. Glasser ofcounsel), for respondent.
Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered February 27,2007, which, to the extent appealed from, denied the cross motion of defendant Capris & CapriWindow Corp. (Capris) for summary judgment dismissing the complaint as against it,unanimously affirmed, without costs.
The court properly denied Capris' cross motion for summary judgment in this action in whichplaintiff seeks damages for injuries she allegedly sustained when a window installed by Caprisfell out of its tracks and struck her in the head as she attempted to close it. Although a contractualobligation, standing alone, will generally not give rise to tort liability in favor of a third person(see Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, 226 [1990]), anexception exists where a contractor who undertakes to perform services pursuant to a contractnegligently creates or exacerbates a dangerous condition so as to have "launched a force orinstrument of harm" (Espinal v Melville Snow Contrs., 98 NY2d 136, 141-142 [2002],quoting Moch Co. v Rensselaer Water Co., 247 NY 160, 168 [1928]). The allegation thatCapris negligently installed the window with defective parts causing it to fall out of its track fallswithin this exception (see e.g. Bienaimev Reyer, 41 AD3d 400 [2007]; Prenderville v International Serv. Sys., Inc., 10 AD3d 334, 336-338[2004]). Triable factual issues exist concerning what parts Capris replaced, whether the part wasreplaced by someone else or whether Capris altered or [*2]repaired the spring latch mechanism provided by the windowmanufacturer prior to or during installation, and whether the window was negligently installed.Concur—Andrias, J.P., Buckley, Catterson, Malone and Kavanagh, JJ.