| Hartofil v McCourt & Trudden Funeral Home, Inc. |
| 2008 NY Slip Op 10585 [57 AD3d 943] |
| December 30, 2008 |
| Appellate Division, Second Department |
| John Hartofil, Respondent-Appellant, v McCourt &Trudden Funeral Home, Inc., Respondent, Incorporated Village of Farmingdale,Appellant-Respondent, and F.D. Contracting Corp.,Respondent-Appellant. |
—[*1] John A. Santora, Lynbrook, N.Y. (Leonard S. Wetzlar of counsel), forplaintiff-respondent-appellant. Jacobson & Schwartz, Rockville Centre, N.Y. (Henry J. Cernitz and Richard Geffen ofcounsel), for defendant-respondent-appellant. James R. Pieret, Garden City, N.Y. (Michael J. Colleary of counsel), forrespondent.
In an action to recover damages for personal injuries, (a) the defendant Incorporated Villageof Farmingdale appeals, as limited by its brief, from so much of an order of the Supreme Court,Nassau County (Lally, J.), dated February 7, 2008, as denied that branch of its motion which wasfor summary judgment dismissing the cross claim of the defendant F.D. Contracting Corp.insofar as asserted against it and granted the motion of the defendant McCourt & TruddenFuneral Home, Inc., for summary judgment dismissing the complaint insofar as asserted againstit, (b) the defendant F.D. Contracting Corp. cross-appeals, as limited by its brief, from so muchof the same order as denied its motion for summary judgment dismissing the complaint and allcross claims insofar as asserted against it, and (c) the plaintiff separately cross-appeals, as limitedby his brief, from so much of the same order as granted the motion of the defendant McCourt &Trudden Funeral Home, Inc., for summary judgment dismissing the complaint insofar as assertedagainst it.[*2]
Ordered that the appeal by the defendant IncorporatedVillage of Farmingdale from so much of the order as granted the motion of the defendantMcCourt & Trudden Funeral Home, Inc., for summary judgment dismissing the complaintinsofar as asserted against it, is dismissed, without costs or disbursements, as it is not aggrievedthereby (see Carpenter v Murphy, 4 AD3d 318 [2004]); and it is further,
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denyingthe motion of the defendant F.D. Contracting Corp. for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it and substituting therefor a provisiongranting that motion, and (2) by deleting the provision thereof denying that branch of the motionof the defendant Incorporated Village of Farmingdale which was for summary judgmentdismissing the cross claim of the defendant F.D. Contracting Corp. and substituting therefor aprovision granting that branch of the motion; as so modified, the order is affirmed insofar ascross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendants Incorporated Village ofFarmingdale, F.D. Contracting Corp., and McCourt & Trudden Funeral Home, Inc., payable bythe plaintiff.
On the afternoon of January 27, 2006 the plaintiff tripped and fell on a strip of brickworklocated adjacent to a public sidewalk in the Incorporated Village of Farmingdale. The accidentoccurred in front of premises owned by the defendant McCourt & Trudden Funeral Home, Inc.(hereinafter McCourt). Although the brickwork was level with the adjacent concrete sidewalkflags, the plaintiff alleges that the bricks he tripped over had sunk, creating a height differential.The plaintiff subsequently commenced this action against the Village, the adjoining propertyowner, McCourt, and F.D. Contracting Corp. (hereinafter F.D. Contracting), the contractor whichhad installed the brickwork approximately eight years prior to the accident.
After depositions had been conducted, McCourt moved for summary judgment dismissingthe complaint insofar as asserted against it and the Village and F.D. Contracting separatelymoved for summary judgment dismissing the complaint and all cross claims insofar as assertedagainst each of them. While the motions were pending, the plaintiff voluntarily discontinued hisaction against the Village. The Supreme Court granted McCourt's motion for summary judgment,concluding that it had no duty to maintain and repair the brickwork in front of its premisespursuant to the Code of the Village of Farmingdale § 81-3.1 because the brickwork wasnot part of the sidewalk. However, the court denied F.D. Contracting's motion, finding that therewas an issue of fact as to whether it could be held liable on the theory that the contractspecifications for the brickwork were so obviously defective that a contractor of ordinary skilland prudence would not have performed the work. The court also denied that branch of theVillage's motion which was for summary judgment dismissing the cross claim of F.D.Contracting insofar as asserted against it.
As a general rule, "[a] builder or contractor is justified in relying upon the plans andspecifications which he has contracted to follow" (Ryan v Feeney & Sheehan Bldg. Co.,239 NY 43, 46 [1924]; see Gee v City of New York, 304 AD2d 615, 616 [2003]). Thus,a contractor who performs its work in accordance with contract plans may not be held liableunless those plans are "so patently defective as to place a contractor of ordinary prudence onnotice that the project, if completed according to the plans, is potentially dangerous" (West vCity of Troy, 231 AD2d 825, 826 [1996]; see Ryan v Feeney & Sheehan Bldg. Co.,239 NY at 46; Gee v City of New York, 304 AD2d at 616; Stevens v Bast [*3]Hatfield, Inc., 226 AD2d 981 [1996]; Morriseau vRifenburg Constr., 223 AD2d 981, 982 [1996]). Here, F.D. Contracting made a prima facieshowing of its entitlement to summary judgment by submitting evidentiary proof that it properlyrelied upon contract plans provided by the Village's engineer in installing the subject brickwork(see Lacy v New York City Hous. Auth., 4 AD3d 455, 456 [2004]; Gee v City ofNew York, 304 AD3d at 616; Stevens v Bast Hatfield, Inc., 226 AD2d at 982). Inopposition, the plaintiff failed to raise a triable issue of fact as to whether the contract plans wereso clearly defective that a contractor of ordinary prudence would not have performed the work.Contrary to the Supreme Court's determination, the affidavit of the plaintiff's masonry expert wasinsufficient to raise an issue of fact because his conclusions were not supported by citation toempirical data or any relevant construction practices or industry standards (see Delgado vCounty of Suffolk, 40 AD3d 575, 576 [2007]; Stevens v Bast Hatfield, Inc., 226AD2d at 982). Accordingly, the court should have granted F.D. Contracting's motion forsummary judgment dismissing the complaint and all cross claims insofar as asserted against it.Since the complaint and all cross claims insofar as asserted against F.D. Contracting should havebeen dismissed, that branch of the Village's motion which was for summary judgment dismissingthe cross claim of F.D. Contracting insofar as asserted against it should have been granted.
The Supreme Court properly granted McCourt's motion for summary judgment dismissingthe complaint insofar as asserted against it. "Generally, liability for injuries sustained as a resultof negligent maintenance of or the existence of dangerous and defective conditions to publicsidewalks is placed on the municipality and not the abutting landowner" (Hausser vGiunta, 88 NY2d 449, 452-453 [1996]). Although the Code of the Village of Farmingdale§ 81-3.1 imposes a duty upon adjoining landowners to repair and maintain Villagesidewalks, the court correctly determined that the brickwork area where the plaintiff fell, whichcontains trees and tree wells, is not a "sidewalk" within the meaning of the ordinance (seeVehicle and Traffic Law § 144; Vucetovic v Epsom Downs, Inc., 10 NY3d 517[2008]). Accordingly, McCourt had no duty to maintain and repair the brickwork. Mastro, J.P.,Florio, Eng and Chambers, JJ., concur. [See 2008 NY Slip Op 30434(U).]