| Peluso v ERM |
| 2009 NY Slip Op 05308 [63 AD3d 1025] |
| June 23, 2009 |
| Appellate Division, Second Department |
| Mildred Peluso, Respondent, v ERM et al.,Appellants. |
—[*1] Marianne N. Candito, Bohemia, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Nassau County (LaMarca, J.), dated September 29, 2008, which denied theirmotion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the motion for summaryjudgment dismissing the complaint is granted.
The plaintiff allegedly was injured when she tripped and fell on rocks that had accumulatedon her employer's asphalt parking lot. Prior to the accident, her employer had retained thedefendants to perform work on its property, which included excavating portions of the parkinglot. Under their contract with the plaintiff's employer, the defendants were required to backfillthe excavated areas with recycled concrete aggregate and tamp it down, but were not responsiblefor repaving the parking lot after their work was completed. A representative of the plaintiff'semployer informed the defendants' principal that the employer intended to repave the parking lotafter the defendants' work was completed. Approximately two months before the plaintiff'saccident, the defendants completed their work to the satisfaction of the plaintiff's employer, but,as of the date of the accident, the employer had not repaved the parking lot. According to theplaintiff, gravel, dirt, and rock, including the material on which she tripped, had become loose asvehicles drove over the backfilled areas, and the condition of the parking lot had worsened withthe passage of time.
The defendants made a prima facie showing of their entitlement to judgment as a matter oflaw by demonstrating that they owed no duty of care to the plaintiff (see Espinal v MelvilleSnow Contrs., 98 NY2d 136 [2002]). In opposition, the plaintiff failed to raise a triable issueof fact as to whether the defendants created the alleged hazardous condition (id. at141-143). There is no evidence that the defendants breached their contractual obligation tobackfill the excavated areas, or that they assumed a continuing duty to return to the premisesafter completing their work and remedy any defects that eventually developed there (seeHorowitz v Marel Elec. Servs., 271 AD2d 572 [2000]; Long v Danforth Co., 236AD2d 781 [1997]). "As such, it cannot be said that [the defendants] affirmatively created adangerous condition" (Morriseau v Rifenburg Constr., 223 AD2d 981, 982 [1996]).[*2]
Moreover, "[a] builder or contractor is justified in relyingupon the plans and specifications which he has contracted to follow unless they are so apparentlydefective that an ordinary builder of ordinary prudence would be put upon notice that the workwas dangerous and likely to cause injury" (Ryan v Feeney & Sheehan Bldg. Co., 239 NY43, 46 [1924]; see Hartofil v McCourt & Trudden Funeral Home, Inc., 57 AD3d 943,945 [2008]; Gee v City of New York, 304 AD2d 615, 616 [2003]). Here, the defendantsjustifiably relied upon the contractual specifications, which required only that they backfill theexcavated areas and tamp them down. It was not apparent that those specifications weredefective, since the defendants reasonably believed that the employer would repave the parkinglot after their work was completed, thereby eliminating any dangerous condition likely to causeinjury. Prudenti, P.J., Fisher, Miller and Lott, JJ., concur.