| Peters v Trammell Crow Co. |
| 2008 NY Slip Op 00055 [47 AD3d 419] |
| January 8, 2008 |
| Appellate Division, First Department |
| Frank Peters et al., Respondents, v Trammell CrowCompany et al., Appellants, and D.P. Facilities, Respondent. |
—[*1] Gallo, Vitucci, Klar, Pinter & Cogan LLP, New York City (Yolanda Layala of counsel), forTriangle Services, Inc., appellant. Cascone & Kluepfel, LLP, Garden City (Olympia Rubino of counsel), for ARI Products, Inc.,appellant. Worby Groner Edelman LLP, White Plains (Lynn A. Iacona of counsel), for Petersrespondents. Barry, McTiernan & Moore, New York City (Laurel A. Wedinger of counsel), for D.P.Facilities, respondent.
Order, Supreme Court, New York County (Judith J. Gische, J.), entered May 3, 2007, whichdenied defendants-appellants' motions and cross motion for summary judgment, unanimouslymodified, on the law, the motion of defendant ARI Products, Inc. and the cross motion ofdefendant Triangle Services, Inc. granted, and otherwise affirmed, without costs. The Clerk isdirected to enter judgment in favor of defendants ARI Products, Inc. and Triangle Services, Inc.dismissing the second amended complaint and cross claims as against them.
Plaintiffs allege that in November 2002, Frank Peters, an employee of nonparty buildingowner HSBC, was descending an interior stairway when the handrail broke in half, causing hisfall and injury. It is undisputed that the handrail was installed as part of a renovation performedby defendant D.P. Facilities, the general contractor, and ARI Products, Inc., a subcontractor, inapproximately 1992, 10 years before the accident.
Defendant property manager Trammell Crow Company failed to carry its burden of showingentitlement to judgment due to lack of notice of the dangerous condition (see generallyStrowman v Great Atl. & Pac. Tea Co., 252 AD2d 384, 385 [1998]) since, despite itsacknowledged inspection procedure, it failed to conduct any inspection of the area where theaccident occurred, including the subject handrail (see Showverer v Allerton Assoc., 306AD2d [*2]144 [2003]).
However, Triangle Services' unambiguous contract to provide cleaning and janitorial servicesfor the building lacked any repair or maintenance obligations that could give rise to tort liabilityto plaintiff (see Espinal v Melville Snow Contrs., 98 NY2d 136 [2002]), notwithstandingTriangle's provision of "engineering" services, passing mention of the word "maintain," and theprofessed understanding of Trammell Crow's witness to the contrary (see Shilkoff, Inc. v 885Third Ave. Corp., 299 AD2d 253, 253 [2002]). It is clear, as a matter of law, that thebuilding's engineering and maintenance personnel, who performed repairs, were Triangleemployees solely for payroll purposes, and were not under its supervision or control (seeBrunetti v City of New York, 286 AD2d 253 [2001]).
Whether or not ARI Products installed the handrail in question, the conclusory opinion ofplaintiffs' architectural expert is insufficient to raise a question of fact as to whether the handrailwas improperly installed. While citing New York City Administrative Code requirements thathandrails on interior stairs be designed to support certain vertical forces and loads, the expertmade no showing that the handrail in question did not meet such requirements. He also providedno authority to support his assertions that "industry standards" called for installation of aone-piece, 3½-foot handrail, and that the general contractor and the installer of the handrailwere obligated to reinforce the unsafe two-piece handrail at the seam (see Buchholz v Trump 767 Fifth Ave.,LLC, 5 NY3d 1, 8-9 [2005]).
Moreover, given the uncontradicted evidence that the handrail had been twice repaired by thebuilding's maintenance staff, once in the summer of 1997, when the anchors attaching the lowerend of the handrail to the wall became dislodged and the dislodged end lay on the floor, andagain in the fall of 1999, when the handrail broke in half ("Both connections were still on thewall and it was split in half it was broken in the middle and not off the wall"), ARI's motion forsummary judgment should have been granted. While questions of causation arising out of theacts of a third party that intervene between the defendant's conduct and the plaintiff's injury aregenerally for the fact finder to resolve, where only one conclusion may be drawn from theestablished facts, the question of legal cause may be decided as a matter of law (Derdiarian vFelix Contr. Corp., 51 NY2d 308, 315 [1980]).
Thus, while there may be a question of fact as to whether ARI originally installed thehandrail, there is no question that it had nothing to do with the two subsequent repairs, includingthe repair of the "significant" damage to the handrail after it had broken in two in 1999. Thebuilding's maintenance staff having made the repairs rather than looking to the general contractoror its subcontractor to repair or replace the broken handrail on either occasion, such repairs must[*3]be deemed, as a matter of law, to have constituted anintervening act so far removed from ARI's alleged conduct as to constitute a superseding actbreaking any causal nexus (see Derdiarian at 315). Concur—Lippman, P.J.,Mazzarelli, Andrias, Buckley and Sweeny, JJ. [See 2007 NY Slip Op 31031(U).]