| Ragone v Spring Scaffolding, Inc. |
| 2007 NY Slip Op 09752 [46 AD3d 652] |
| December 11, 2007 |
| Appellate Division, Second Department |
| Peter Ragone, Appellant-Respondent, v SpringScaffolding, Inc., et al., Respondents, et al., Defendant, and Universal Services Group, Ltd., etal., Respondents-Appellants. |
—[*1] Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), forrespondents-appellants. Rubin, Fiorella & Friedman, LLP, New York, N.Y. (Leila Cardo of counsel), for respondentSpring Scaffolding, Inc. Weiner, Millo & Morgan, LLC, New York, N.Y. (Gregory M. Shapiro and Scott F. Morganof counsel), for respondent A Plus Restoration Consultant Corporation.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from stated portions of an order of the Supreme Court, Queens County (Schulman, J.),dated July 18, 2006, which, inter alia, granted the separate motions of the defendants SpringScaffolding, Inc., and A Plus Restoration Consultant Corporation for summary judgmentdismissing the complaint insofar as asserted against them, granted those branches of the motionof the defendants Universal Services Group, Ltd., Federated Department Stores, Inc., Macy'sPrimary Real Estate, Inc., Macy's East, Inc., Macy's New York, Inc., Macy's Northeast, Inc., andHerald Square Properties Corp. which were for summary judgment dismissing the causes ofaction alleging common-law negligence insofar as asserted against the defendant UniversalServices Group, Ltd., the cause of action alleging a violation of Labor Law § 200 insofaras asserted against each of them, and so much of the cause of action as alleged a violation ofLabor Law § 241 (6) based on 12 NYCRR 23-1.7 (e) (1) and (2) insofar as asserted againsteach of them, and denied that branch of his cross motion which was for summary judgment onhis cause of action alleging a violation of Labor Law § 241 (6) based on 12 NYCRR23-5.8 (c) insofar as asserted against the defendants Universal Services Group, Ltd., FederatedDepartment Stores, Inc., Macy's Primary Real Estate, Inc., Macy's [*2]East, Inc., Macy's New York, Inc., Macy's Northeast, Inc., andHerald Square Properties Corp.; and the defendants Universal Services Group, Ltd., FederatedDepartment Stores, Inc., Macy's Primary Real Estate, Inc., Macy's East, Inc., Macy's New York,Inc., Macy's Northeast, Inc., and Herald Square Properties Corp. cross-appeal, as limited by theirbrief, from so much of the same order as denied that branch of their motion which was forsummary judgment dismissing so much of the cause of action alleging a violation of Labor Law§ 241 (6) as was based on 12 NYCRR 23-5.8 (c).
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the motion of the defendant Spring Scaffolding, Inc., which was for summary judgmentdismissing the cause of action based on common-law negligence insofar as asserted against it,and substituting therefor a provision denying that branch of the motion; as so modified, the orderis affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The plaintiff alleges that he was injured when a motorized hoist fell from a scaffold which hewas wheeling along an elevated bridge over the sidewalk adjacent to a department store whichwas undergoing renovation. The elevated bridge had been constructed by the defendant SpringScaffolding, Inc. (hereinafter Spring), pursuant to a contract with the defendant UniversalServices Group, Ltd. (hereinafter Universal), the general contractor.
The plaintiff commenced this action against, among others, Spring and Universal andFederated Department Stores, Inc., along with Macy's New York, Inc., and related entities(hereinafter collectively Macy's), the owner of the department store, and A Plus RestorationConsultant Corporation (hereinafter A Plus), a subcontractor of the plaintiff's employer.
The plaintiff alleged that Spring created a dangerous condition by erecting the elevatedbridge with a raised plank, which caused the scaffold to jolt and the motor hoist to fall upon andinjure the plaintiff. Spring contended, inter alia, that because it contracted with Universal, itowed no duty to the plaintiff.
Generally, a contractual obligation, standing alone, is insufficient to give rise to tort liabilityin favor of a non-contracting third party (see Espinal v Melville Snow Contrs., 98 NY2d136, 138 [2002]). However, an exception to this general rule exists where the promisor, whileengaged affirmatively in discharging a contractual obligation, creates an unreasonable risk ofharm to others, or increases that risk, sometimes described as conduct that has "launched a forceor instrument of harm" (Moch Co. v Rensselaer Water Co., 247 NY 160, 168 [1928]; see Bienaime v Reyer, 41 AD3d400, 403 [2007]; Regatta Condominium Assn. v Village of Mamaroneck, 303 AD2d739, 740 [2003]; Espinal v Melville Snow Contrs., 98 NY2d at 140-142).
The allegation that Spring negligently constructed the sidewalk bridge with a raised plankfalls within this exception (see Grant v Caprice Mgt. Corp., 43 AD3d 708 [2007];Bienaime v Reyer, 41 AD3d400, 403 [2007]). Thus, Spring failed to make a prima facie showing that it was entitled tojudgment as a matter of law dismissing the plaintiff's cause of action based on common-lawnegligence. Therefore, the burden never shifted to the plaintiff to raise a triable issue of fact inresponse (see Dooley v PeerlessImporters, Inc., 42 AD3d 199, 204-205 [2007]). Accordingly, the Supreme Court shouldhave denied that branch of Spring's motion which was for summary judgment dismissing thecause of action based on common-law negligence insofar as asserted against it.
A Plus established its prima facie entitlement to judgment as a matter of law dismissing thecause of action based on common-law negligence insofar as asserted against it [*3]because there was no evidence that it created an unreasonable riskof harm that was a proximate cause of the plaintiff's injuries (cf. Marano v Commander Elec., Inc., 12 AD3d 571, 572-573[2004]; Mennerich v Esposito, 4AD3d 399 [2004]). In opposition, the plaintiff failed to raise a triable issue of fact.
Those causes of action alleging common-law negligence against Universal and a violation ofLabor Law § 200 against Universal and Macy's were properly dismissed. Macy'sdemonstrated its prima facie entitlement to judgment as a matter of law with evidenceestablishing that it did not create or have notice of an allegedly unsafe condition which allegedlycaused the accident. Similarly, Universal demonstrated that even if it had control of the work site(see Keating v Nanuet Bd. of Educ.,40 AD3d 706 [2007]), it did not have notice of, or create, the allegedly unsafe conditionwhich allegedly caused the accident (see Comes v New York State Elec. & Gas Corp., 82NY2d 876, 877 [1993]; O'Leary v CleanCut Carpentry, Inc., 31 AD3d 514 [2006]; Molyneaux v City of New York, 28 AD3d 438, 439-440 [2006];Sprague v Peckham Materials Corp., 240 AD2d 392, 394 [1997]). Universal and Macy'ssimilarly demonstrated their prime facie entitlement to judgment as a matter of law with respectto the alleged violations of 12 NYCRR 23-1.7 (e) (1) and (2), as the provisions of the IndustrialCode allegedly violated did not apply to the subject accident (see Piazza v Frank L. Ciminelli Constr. Co., Inc., 2 AD3d 1345,1348 [2003]; Salinas v Barney SkanskaConstr. Co., 2 AD3d 619, 622 [2003]; Dalanna v City of New York, 308 AD2d400, 401 [2003]; Singleton v Citnalta Constr. Corp., 291 AD2d 393, 394 [2002];Adams v Glass Fab, 212 AD2d 972, 973 [1995]). With respect to these matters, theplaintiff failed to raise a triable issue of fact.
However, summary judgment was properly denied with respect to the alleged violation of 12NYCRR 23-5.8 (c), which requires supervision when a scaffold is moved. There are disputedissues of fact as to the proximate cause of the plaintiff's injuries (see Saleh v Saratoga Condominium, 10AD3d 645 [2004]).
The plaintiff's remaining contentions are without merit. Crane, J.P., Goldstein, Skelos andCarni, JJ., concur.