| State of New York v Shaw Contract Flooring Servs., Inc. |
| 2008 NY Slip Op 02542 [49 AD3d 1078] |
| March 20, 2008 |
| Appellate Division, Third Department |
| State of New York, Respondent, v Shaw Contract FlooringServices, Inc., Defendant, and Rochester Linoleum and Carpet Center, Inc.,Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Owen Demuth of counsel), forrespondent.
Carpinello, J. Appeal from an order of the Supreme Court (Teresi, J.), entered November 30,2006 in Albany County, which, among other things, partially denied the motion of defendantRochester Linoleum and Carpet Center, Inc. to dismiss the complaint against it.
During the course of a renovation project at the State University of New York at Alfred,asbestos was released into a dormitory as the result of abrasion of tiles during flooring work. It isundisputed that this work was performed by a subcontractor of defendant Rochester Linoleumand Carpet Center, Inc. After remediation, plaintiff commenced this action alleging, as relevanton appeal, negligence and public nuisance against Rochester. Rochester's unsuccessful motion todismiss these two causes of action for failure to state a cognizable claim has prompted thisappeal.[*2]
With respect to the negligence cause of action, theamended complaint alleges that Rochester undertook the flooring work for the subject renovationproject from another entity, that Rochester had been advised that the existing flooring containedasbestos and that, as a result, the work was inherently dangerous and that Rochester and itsagents and/or representatives thereafter performed the work in such a manner that asbestos wasreleased into the air (see Rosenberg v Equitable Life Assur. Socy. of U.S., 79 NY2d 663,670 [1992]). With respect to the public nuisance cause of action, the amended complaint allegesthat Rochester's conduct disregarded the rights of all dormitory residents, as well as other personsvisiting or otherwise occupying it. Upon affording the amended complaint liberal construction,deeming all allegations against Rochester to be true and according plaintiff "the benefit of everypossible favorable inference" (Leon v Martinez, 84 NY2d 83, 87 [1994]; see e.g.Rovello v Orofino Realty Co., 40 NY2d 633, 634-635 [1976]), we are satisfied that plaintiffstated legally cognizable causes of action sounding in both negligence and public nuisance. Wefurther note that, "[i]n assessing a motion under CPLR 3211 (a) (7), . . . a court mayfreely consider affidavits submitted by the plaintiff to remedy any defects in the complaint"(Leon v Martinez, 84 NY2d at 88). Here, plaintiff submitted the affidavit of a salesrepresentative affiliated with Rochester who established that Rochester was indeed activelyinvolved in the subject flooring project and had been advised that the existing flooring in thedormitory contained asbestos. Consideration of this affidavit supports the finding that plaintiffhas stated causes of action against Rochester.
Mercure, J.P., Peters, Rose and Kavanagh, JJ., concur. Ordered that the order is affirmed,without costs.