| Schosek v Amherst Paving, Inc. |
| 2008 NY Slip Op 06022 [53 AD3d 1037] |
| July 3, 2008 |
| Appellate Division, Fourth Department |
| Todd Schosek, as Administrator of the Estate of Jesse J. Schosek,Deceased, et al., Appellants, v Amherst Paving, Inc., et al.,Respondents. |
—[*1] Michael G. Cooper, Hamburg, for plaintiff-appellant Kelly Schosek, as Administrator of theEstate of Carol L. Schosek, Deceased. Kenney Shelton Liptak Nowak LLP, Buffalo (Brian A. MacDonald of counsel), fordefendant-respondent Amherst Paving, Inc.
Appeals from an order of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), enteredApril 19, 2007 in an action for personal injury and wrongful death. The order granted the motionof defendant Amherst Paving, Inc. for summary judgment dismissing the action and the crossclaims of defendant County of Erie against it.
It is hereby ordered that said appeals from the order insofar as it dismissed the cross claimsare dismissed and the order is affirmed without costs.
Memorandum: Plaintiffs commenced these consolidated actions seeking damages arising outof a motor vehicle accident that occurred in the Town of Eden. Plaintiff Kelly Schosek's decedentallegedly lost control of her vehicle when she drove onto the shoulder of the road and attemptedto return to the traveled portion of the road, and plaintiff Todd Schosek's decedent was apassenger in the vehicle. At the time of the accident, defendant County of Erie (County) hadcontracted with defendant Amherst Paving, Inc. (Amherst Paving) to repave the roadway, and theCounty was responsible for rebuilding the shoulders of the roadway. It is undisputed thatAmherst Paving had applied the binder layer of pavement prior to the accident and that, before itwas able to apply the top layer of pavement, the County halted the paving operation in order tomake unrelated repairs to the shoulder of the roadway. Thus, in its unfinished state at the time ofthe accident at the location where the vehicle of plaintiff Kelly Schosek's decedent left theroadway, there was a height differential, or "drop-off," of approximately 4½ inches betweenthe paved portion of the roadway and the gravel shoulder of the roadway.
Supreme Court properly granted that part of the motion of Amherst Paving for summaryjudgment dismissing "the action" against it. Amherst Paving established as a matter of law that[*2]it did not owe plaintiffs' decedents a duty of care, inasmuch as"a contractual obligation, standing alone, will generally not give rise to tort liability in favor of athird party" (Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]; see Churchv Callanan Indus., 99 NY2d 104, 111 [2002]; Cooper v Time Warner Entertainment-Advance/Newhouse Partnership,16 AD3d 1037, 1038 [2005]). Contrary to plaintiffs' contention, the exception to that generalrule "where the contracting party, in failing to exercise reasonable care in the performance of [its]duties, 'launche[d] a force or instrument of harm' " does not apply here (Espinal, 98NY2d at 140; see Anderson vJefferson-Utica Group, Inc., 26 AD3d 760, 760-761 [2006]). It cannot be said thatAmherst Paving launched a force or instrument of harm by failing to place cones or constructionsigns near the accident site or by applying the binder layer of pavement pursuant to the contract.
Also contrary to plaintiffs' contention, the failure of Amherst Paving to place cones orconstruction signs at the accident site did not create a duty of care owing to plaintiffs' decedents.Such inaction "did nothing more than neglect to make the [roadway] safer—asopposed to less safe—than it was before the repaving . . . project began"(Church, 99 NY2d at 112; seealso Stiver v Good & Fair Carting & Moving, Inc., 32 AD3d 1209, 1210-1211 [2006],affd 9 NY3d 253 [2007]; Cooper, 16 AD3d at 1038-1039). Moreover, pursuant tothe express terms of the contract between Amherst Paving and the County, only the County wasresponsible for protecting traffic. Thus, Amherst Paving's "'inaction is at most a refusal tobecome an instrument for good' " (Church, 99 NY2d at 112). The dissent notes that, atthe time the County interrupted Amherst Paving's repaving work, "the height of the roadway waselevated in certain areas from 4 to 4½ inches above the height of the shoulder of theroadway" and that Amherst Paving "was aware that there was a problem with the shoulder of theroadway." The record is barren, however, of any evidence either that Amherst Paving hadknowledge that such a drop-off existed at the location where the vehicle of plaintiff KellySchosek's decedent left the roadway, or that the County interrupted the repaving work because ofa problem created by Amherst Paving. Thus, it is of no moment that there existed a4-to-4½-inch drop-off on the roadway's shoulder "in certain areas" of the roadway or thatAmherst Paving was aware of "a problem" with the shoulder of the roadway prior to the accident.In opposition, plaintiffs failed to raise an issue of fact whether Amherst Paving "negligentlycreated or exacerbated the allegedly dangerous condition" (Blazynski v A. Gareleck & Sons, Inc., 48 AD3d 1168, 1170[2008]). There is no evidence in the record establishing how much of the 4½-inch drop-offwas attributable to the work of Amherst Paving and, indeed, the contract between AmherstPaving and the County specified that Amherst Paving was to apply only a two-inch binder layerof pavement to the roadway.
We conclude that plaintiffs lack standing to appeal from that part of the order dismissing theCounty's cross claims against Amherst Paving because they were not aggrieved by that part of theorder, and thus the appeals from that part of the order must be dismissed (see CPLR5511; see generally Board of Mgrs. of Riverview at Coll. Point Condominium III v SchorrBros. Dev. Corp., 182 AD2d 664, 666 [1992]). In light of our determination, we need notreach plaintiffs' remaining contentions.
All concur except Fahey and Gorski, JJ., who dissent in part and vote to modify inaccordance with the following memorandum.
Fahey and Gorski, JJ. (dissenting in part). We respectfully dissent in part and would modifythe order by denying that part of the motion of defendant Amherst Paving, Inc. (Amherst Paving)seeking summary judgment dismissing "the action" against it. In our view, Amherst Paving failedto establish as a matter of law that it did not owe plaintiffs' decedents a duty of care. As noted bythe majority, the accident occurred after Amherst Paving began to repave the subject roadway butbefore it had completed the repaving. When defendant County of Erie (County) interruptedAmherst Paving's repaving work prior to the accident, the height of the roadway was elevated incertain areas from 4 to 4½ inches above the height of the shoulder of the roadway.[*3]
In support of its motion, Amherst Paving submitted thedeposition testimony of an engineer employed by the County, who acknowledged that a heightdifferential of from 4 to 4½ inches between the roadway and the shoulder thereof would be"cause [for] concern" because a vehicle could "drop-off" the roadway. In addition, thesubmissions of Amherst Paving in support of the motion establish that it was aware that therewas a problem with the shoulder of the roadway prior to the date of the accident, inasmuch asthat problem was the stated reason for the interruption by the County of Amherst Paving'srepaving work. "Viewing the evidence in the light most favorable to the nonmoving parties, aswe must" (Graziadei v Mohamed,23 AD3d 1100, 1101 [2005]), we conclude that by its own submissions Amherst Pavingraised a triable issue of fact precluding summary judgment (see generally Zuckerman v Cityof New York, 49 NY2d 557, 562 [1980]). It is well established that a defendant "whoundertakes to render services and then negligently creates or exacerbates a dangerous conditionmay be liable for any resulting injury" (Espinal v Melville Snow Contrs., 98 NY2d 136,141-142 [2002]; see Church v Callanan Indus., 99 NY2d 104, 111 [2002]), and weconclude herein that there is an issue of fact whether Amherst Paving was negligent in creating adangerous condition by performing some of its contractual duties and by leaving the roadway in aless safe condition, fully aware of the problem it was leaving behind (cf. Church, 99NY2d at 112). Present—Smith, J.P., Lunn, Fahey, Pine and Gorski, JJ.