| Grady v Hoffman |
| 2009 NY Slip Op 04340 [63 AD3d 1266] |
| June 4, 2009 |
| Appellate Division, Third Department |
| Michael T. Grady, Appellant, v Margaret E. Hoffman, Individuallyand as Executor of Paul D. Hoffman, Deceased, et al., Respondents. (And a Third-PartyAction.) |
—[*1] Hanlon, Veloce & Wilkinson, Albany (Thomas J. Wilkinson of counsel), for Margaret E.Hoffman, respondent. Ryan & Smallacombe, P.L.L.C., Albany (John F. Moore of counsel), for Estep Restorations,Ltd., respondent.
Lahtinen, J. Appeal from an order of the Supreme Court (Egan, Jr., J.), entered April 25,2008 in Albany County, which granted defendants' motions for summary judgment dismissingthe complaint.
Plaintiff, a college student working a summer job as a dishwasher at a restaurant in SaratogaCounty, sustained severe burns when, at about 10:30 p.m. on August 7, 2004, he allegedlystepped into a large hole behind the restaurant, lost his balance, and spilled hot grease that hewas carrying onto himself. The restaurant, known as the Old Dublin Inn, was operated byWilliam Byrne and Angela Byrne through their corporation, third-party defendant, Larback, Inc.Defendant Margaret E. Hoffman owned the premises, which had been leased to Larback. A deckhad recently been added near where plaintiff fell by defendant Estep Restorations, Ltd., a [*2]corporation owned by Angela Byrne's father, Daniel Estep. Plaintiffcommenced this action against Hoffman and Estep Restorations. Following discovery, bothdefendants moved for summary judgment dismissing the complaint. Supreme Court granted themotions. Plaintiff appeals.
We initially consider whether Supreme Court properly dismissed the claim against EstepRestorations, which turns on whether that contractor had any duty to plaintiff under thecircumstances. It is well settled that a "contractual obligation, standing alone, will generally notgive rise to tort liability in favor of a third party" (Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d 253, 257[2007] [internal quotation marks and citation omitted]; see Church v Callanan Indus., 99NY2d 104, 111 [2002]; Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]).There are three recognized exceptions to this general rule (see Stiver v Good & Fair Carting& Moving, Inc., 9 NY3d at 257), and plaintiff in this appeal focuses on the exception thatapplies when, in the words of Chief Judge Cardozo, the promisor has "launched a force orinstrument of harm" (Moch Co. v Rensselaer Water Co., 247 NY 160, 168 [1928]).Stated another way, this exception is implicated "where the promisor, while engagedaffirmatively in discharging a contractual obligation, creates an unreasonable risk of harm toothers, or increases that risk" (Church v Callanan Indus., 99 NY2d at 111; seeEspinal v Melville Snow Contrs., 98 NY2d at 142-143).
Plaintiff, who had been at the job less than a week when the accident occurred, testified thatas he walked in the dark behind the restaurant with the pan of hot grease he stepped into a holewhich he described as a "cylindrical hole" that was "[a]t least a foot in diameter" and about 12 to18 inches deep. Estep Restorations had just completed a deck located within approximately eightfeet of where the accident occurred. Indeed, plaintiff stated that when he interviewed for the jobabout a week earlier, work was still being done on the deck. The deck was constructed onsupporting pylons, which required holes with a circumference approximately the same size as theone plaintiff stated caused his accident. Although the holes were reportedly actually dug byWilliam Byrne, there is evidence that Daniel Estep marked the places for digging and, by hisown testimony, engaged in some supervision of his son-in-law. Estep denied that any work wasdone in the specific area where plaintiff fell and denied that any holes were left not fully filled.However, plaintiff's testimony raises a factual issue as to whether a round hole had been dug andleft partially unfilled. In light of this testimony and the fact that digging of the type of holedescribed by plaintiff had been done very recently in the general vicinity where the fall occurred,we conclude that there is ample evidence to raise a factual issue as to whether Estep Restorationsaffirmatively created an unreasonable risk of harm. Accordingly, we reverse so much ofSupreme Court's order as dismissed the complaint as to Estep Restorations.
Turning to Hoffman, we agree with Supreme Court that summary judgment was appropriate."An out-of-possession landlord is generally not responsible for the maintenance or repair ofleased premises; however, one who retains control of the premises or contracts to repair ormaintain the property may be liable for defects" (Henness v Lusins, 229 AD2d 873,873-874 [1996] [citations omitted]; see Rossal-Daub v Walter, 58 AD3d 992, 993-994[2009]; Davison v Wiggand, 259 AD2d 799, 800-801 [1999], lv denied 94 NY2d751 [1999]). There is no showing in the record that Hoffman retained in the lease, or actuallyexercised, sufficient control over the premises for her to be liable for this accident. Nor wasHoffman obligated by the lease to repair or maintain the property. The fact that Hoffman mayhave "retained the right to visit the premises, or even to approve alterations, additions orimprovements, is 'insufficient to establish the requisite degree of control necessary for theimposition of liability with respect to an out-of-[*3]possessionlandlord' " (Ferro v Burton, 45AD3d 1454, 1455 [2007], quoting Schwegler v City of Niagara Falls, 21 AD3d 1268, 1270 [2005]).Plaintiff failed to raise a triable issue as to any exception to the general rule regarding anout-of-possession landlord (see Davison v Wiggand, 259 AD2d at 801-802).
Cardona, P.J., Peters, Kane and Garry, JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as granted the motion of defendant EstepRestorations, Ltd. for summary judgment; said motion denied; and, as so modified, affirmed.