| Concord Vil. Owners, Inc. v Trinity Communications Corp. |
| 2009 NY Slip Op 02537 [61 AD3d 410] |
| April 2, 2009 |
| Appellate Division, First Department |
| Concord Village Owners, Inc., Respondent, v TrinityCommunications Corp. et al., Appellants, et al., Defendant. Trinity Communications Corp.,Third-Party Plaintiff-Appellant, v Central Locating Service, Ltd., Third-PartyDefendant-Appellant. |
—[*1] Newman Myers Kreines Gross Harris, P.C., New York (Charles W. Kreines of counsel), forTime Warner Cable of New York City, appellant. Lavin, O'Neil, Ricci, Cedrone & DiSipio, New York (Susan E. Satkowski of counsel), forCentral Locating Service, Ltd., appellant. Dunnington, Bartholow & Miller LLP, New York (Carol A. Sigmond of counsel), forConcord Village Owners, Inc., respondent.
Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered May 13, 2008,which, to the extent appealed from, denied the motions of defendants Time Warner Cable ofNew York City, a division of Time Warner Entertainment Co., L.P., and Time Warner, Inc.(collectively Time Warner), and Trinity Communications Corporation (Trinity), and third-partydefendant Central Locating Service (CLS) for summary judgment dismissing the complaint,unanimously modified, on the law, to the extent of granting Time Warner's motion anddismissing the complaint as against it, and otherwise affirmed, without costs. The Clerk isdirected to enter judgment accordingly.
Time Warner retained Trinity to excavate and replace its underground cables near [*2]plaintiff's building and CLS was hired by involved utilitiesoperators to mark out the various utilities at the site so as to minimize the risk of strikingunderground pipes or cables. During the excavation, a gas main was ruptured, causing naturalgas to escape from the cracked main into the air. Gas service to plaintiff's building was shut off,and plaintiff alleges that the leaks subsequently found in its internal gas system were caused bythe negligence involved in rupturing the gas main.
Generally, a party that hires an independent contractor cannot be held liable for thenegligence of that independent contractor (see Chainani v Board of Educ. of City ofN.Y., 87 NY2d 370 [1995]), and summary judgment is appropriate where the evidence onthe issue of control of the method and means of the work presents no conflict (Goodwin v Comcast Corp., 42 AD3d322 [2007]). Here, the record establishes that Time Warner had no authority to direct orcontrol Trinity's work, and accordingly, Time Warner is entitled to summary judgment (seeSteel v City of New York, 271 AD2d 435 [2000]).
Regarding Trinity and CLS, the record presents triable issues of fact as to whether therupture of the gas main caused the gas leaks in plaintiff's building. In an affidavit, plaintiff'sexpert refuted the opinion of the expert relied upon by, inter alia, Trinity and CLS, that the leaksin the pipes had been caused by the deterioration of the pipes, and he opined that the leaks werecaused by the rupture of the gas main and the resulting loss in pressure in the gas system.Plaintiff's expert also refuted the claim that the lubricating material used on the gas pipes wasrelevant to the leaks and concluded that the loss of pressure and the introduction of air andhumidity into a previously closed system caused the damage. Furthermore, the affidavit ofplaintiff's expert was based on the evidence in this case, as well as his knowledge and experienceas a professional engineer. Although he never examined the pipes removed from plaintiff'sbuilding and only inspected the gas system two years after the incident, he reviewed all of thedeposition testimony and other evidence and set forth in detail the facts supporting hisconclusions (see Cuevas v City of NewYork, 32 AD3d 372 [2006]). Concur—Mazzarelli, J.P., Friedman, Moskowitzand Acosta, JJ. [See 2008 NY Slip Op 31359(U).]