| Oefelein v CFI Constr., Inc. |
| 2007 NY Slip Op 08328 [45 AD3d 1002] |
| November 8, 2007 |
| Appellate Division, Third Department |
| Keith Oefelein et al., Appellants, v CFI Construction, Inc.,et al., Respondents, et al., Defendants. |
—[*1] The Law Office of Michael M. Emminger, Albany (Robert S. Bruschini of counsel), for CFIConstruction, Inc., respondent. Hancock & Estabrook, L.L.P., Syracuse (Janet D. Callahan of counsel), for AmerigasPropane, L.P., respondent.
Crew III, J. Appeal from an order of the Supreme Court (Dowd, J.), entered October 5, 2006in Otsego County, which, among other things, granted the motions of defendant CFIConstruction, Inc. and defendant Amerigas Propane, L.P. for summary judgment dismissing thecomplaint against them.
On September 17, 2001, plaintiff Keith Oefelein injured his right shoulder after allegedlytripping over an exposed piece of plastic gas pipe while working on a renovation project atMiddleburgh High School in the Town of Middleburgh, Schoharie County. The gas line inquestion was damaged during certain excavation work and, upon the request of defendantAmerigas Propane, L.P., the independent gas vendor called in to replace the line, defendant CFIConstruction, Inc., the prime contractor on the project, apparently hand-dug a trough to allow[*2]Amerigas access thereto. An Amerigas service technicianinstalled a new line and left the damaged line in place in accordance with standard practice. Aftertesting on the new line was complete, the line was secured and the area was backfilled. Althoughit is not entirely clear from the record who backfilled and rough graded the area inquestion,[FN*]it is undisputed that this work was accomplished nearly three weeks prior to Oefelein's accidentand that upon completion of such work, the area was "all put back neat and ready to go." Duringthose ensuing three weeks, this area was open to all the trades working on the renovation project,and any number of workers and contractors, over whom neither CFI nor Amerigas had anyauthority or control, passed through this area.
On the day that Oefelein was injured, he was in the process of carrying wooden planks to acertain location on the site and, in so doing, traversed the previously excavated site where the gasline had been repaired. After successfully making two or three trips across this area, his feetpurportedly became entangled with the offending plastic protrusion, causing him to fall andsustain the injuries now alleged. Oefelein and his spouse, derivatively, thereafter commenced thispersonal injury action against, among others, CFI and Amerigas. Following joinder of issue anddiscovery, CFI and Amerigas each moved for summary judgment dismissing the complaint.Supreme Court granted their respective motions, and this appeal by plaintiffs ensued.
We affirm. The case law makes clear that the "breach of a contractual obligation will not besufficient in and of itself to impose tort liability to noncontracting third parties upon thepromisor" (Church v Callanan Indus., 99 NY2d 104, 111 [2002]; see Espinal vMelville Snow Contrs., 98 NY2d 136, 138 [2002]; Wyant v Professional Furnishing & Equip., Inc., 31 AD3d 952, 953[2006]). Although plaintiffs allege that there is a question of fact as to whether CFI and/orAmerigas created or exacerbated the dangerous condition to which Oefeleinsuccumbed—one of the three exceptions to the foregoing rule (see Church v CallananIndus., 99 NY2d at 111-112; Wyant v Professional Furnishing & Equip., Inc., 31AD3d at 953)—we cannot agree.
Supreme Court aptly observed, and the record indeed reveals, that neither CFI nor Amerigasperformed any work at the site of Oefelein's accident for approximately three weeks prior thereto.During that time period, any number of contractors had access to the site, and no protrusionswere noted at any time prior to Oefelein's fall. Notably, Oefelein passed through the area two orthree times prior to his fall and failed to observe anything amiss. Additionally, regardless ofwhich entity actually backfilled the trough dug for the replacement gas line, it is undisputed thatthe area was backfilled, rough graded and inspected shortly after Amerigas replaced the line onAugust 29, 2001, at which time the work was deemed "complete." Finally, there is nothing in therecord to suggest that either CFI or Amerigas exercised any direction or control over the workperformed by Oefelein or the other contractors on site. Simply put, short [*3]of conjecture, speculation or surmise, which, of course, isinadequate to defeat a motion for summary judgment, there is nothing in the record to supportplaintiffs' claim that either CFI or Amerigas left the area where the gas line was replaced "lesssafe than before the construction project began" (Timmins v Tishman Constr. Corp., 9 AD3d 62, 67 [2004], lvdismissed 4 NY3d 739 [2004]). Under such circumstances, Supreme Court properly grantedthe respective motions for summary judgment dismissing the complaint. Plaintiffs' remainingcontentions, to the extent not specifically addressed, have been examined and found to be lackingin merit.
Cardona, P.J., Mercure, Carpinello and Kane, JJ., concur. Ordered that the order is affirmed,with one bill of costs.
Footnote *: Although the Amerigas servicetechnician testified at his examination before trial that he covered the pipe by hand with a shoveland then left the area for CFI to backfill, the CFI representative who subsequently inspected thearea testified that the Amerigas service technician backfilled the trough.