| Cornell v 360 W. 51st St. Realty, LLC |
| 2008 NY Slip Op 04226 [51 AD3d 469] |
| May 6, 2008 |
| Appellate Division, First Department |
| Brenda Cornell, Respondent, v 360 West 51st St. Realty,LLC, et al., Respondents, et al., Defendants. 360 West 51st St. Realty, LLC, et al., Third-PartyPlaintiffs-Respondents, v Supreme Services of New York Inc., Third-Party Defendant-Appellant,et al., Third-Party Defendant. |
—[*1] Gallet Dreyer & Berkey, LLP, New York (Beatrice Lesser of counsel), for Brenda Cornell,respondent. Landman Corsi Ballaine & Ford P.C., New York (Christopher G. Fretel of counsel), for 360West 51st St. Realty, LLC, Brusco Realty Corp., Robert Baranoff and Brusco RealtyManagement LLC, respondents.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered August 23, 2007,which denied the motion by third-party defendant Supreme Services for summary judgmentdismissing the third-party complaint against it and granted plaintiff's cross motion to amend thecomplaint naming Supreme as a direct defendant, unanimously affirmed, with costs.
Plaintiff alleges she was injured by hazardous substances released into the air duringdemolition work performed by 360 West 51st Street Realty and the Brusco Realty defendants(including the latter's property manager, Baranoff). Those defendants commenced a third-partyaction against Supreme Services, alleging negligent removal of debris from the basement of theapartment building.[*2]
Although "a contractual obligation, standing alone, willgenerally not give rise to tort liability in favor of a third party" (Espinal v Melville SnowContrs., 98 NY2d 136, 138 [2002]), an exception exists where a contractor who undertakesto perform services pursuant to a contract negligently creates or exacerbates a dangerouscondition by launching its own "force or instrument of harm" (Moch Co. v Rensselaer WaterCo., 247 NY 160, 168 [1928]; see also Espinal, 98 NY2d at 141-142; Grant v Caprice Mgt. Corp., 43 AD3d708 [2007]; Prenderville vInternational Serv. Sys., Inc., 10 AD3d 334 [2004]). Plaintiff's allegation that Supremenegligently removed the debris falls within this exception (see id. at 336-338). The recordin this case presents triable issues of fact regarding the manner in which Supreme performed thework for which it had been hired.
We have examined Supreme's challenge to its addition as a direct party defendant and find itwithout merit. Concur—Tom, J.P., Andrias, Nardelli and Williams, JJ.