| Golisano v Keeler Constr. Co., Inc. |
| 2010 NY Slip Op 05461 [74 AD3d 1915] |
| June 18, 2010 |
| Appellate Division, Fourth Department |
| Vickie Golisano et al., Respondents, v Keeler Construction Co.,Inc., et al., Appellants. |
—[*1] Costello, Cooney & Fearon, PLLC, Camillus (Timothy N. McMahon of counsel), fordefendant-appellant Upstate Utilities, Inc.
Appeals from an order of the Supreme Court, Orleans County (James H. Dillon, J.), enteredFebruary 6, 2009 in a personal injury action. The order, insofar as appealed from, denied themotion of defendant Upstate Utilities, Inc. and the cross motion of defendant KeelerConstruction Co., Inc. for summary judgment.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries allegedlysustained by Vickie Golisano (plaintiff) when she tripped on a stone that was approximately twoinches in diameter while crossing a street. Plaintiffs alleged that the stone was constructiondebris left in the street as a result of a massive road construction project pursuant to which bothdefendants had contracted to perform work. Defendants moved and cross-moved, respectively,for summary judgment dismissing the complaint against them, each contending that it was notworking in the area of plaintiff's fall in the days before plaintiff's accident and that, in any event,neither owed plaintiff a duty of care. We conclude that Supreme Court properly denied themotion and cross motion.
In support of its motion, defendant Upstate Utilities, Inc. (Upstate) submitted evidenceestablishing that it was performing work in the area of plaintiff's fall before the date of theaccident and that part of its work involved the use of two-inch crusher stone. Upstate alsosubmitted evidence that defendant Keeler Construction Co., Inc. (Keeler) had worked in the areain question within three to four days before plaintiff's fall and that Keeler had also used two-inchcrusher stone. In addition, in support of its cross motion, Keeler submitted evidence establishingthat its employees were working in the location of plaintiff's fall within days of the fall. We thusconclude that defendants themselves raised an issue of fact whether they were responsible forconstruction debris in the area (see generally Zuckerman v City of New York, 49 NY2d557, 562 [1980]).[*2]
We further conclude that neither defendant established asa matter of law that it did not owe a duty to plaintiff. Although plaintiff was a noncontractingthird party with respect to defendants' construction contracts, defendants may still be liable if, "infailing to exercise reasonable care in the performance of [their] duties, [they] 'launche[d] a forceof instrument of harm' " (Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002];see Church v Callanan Indus., 99 NY2d 104, 111 [2002]), or otherwise made theconstruction area "less safe than before the construction project began" (Timmins v Tishman Constr. Corp., 9AD3d 62, 67 [2004], lv dismissed 4 NY3d 739 [2004], rearg denied 4 NY3d795 [2005]). We conclude that there are issues of fact whether the two-inch crusher stone usedby both defendants, when left in the middle of the road, constituted a force or instrument of harmor otherwise made the area less safe than before the construction project began, to establish aduty to plaintiff (see e.g. Schosek vAmherst Paving, Inc., 11 NY3d 882 [2008]; Cornell v 360 W. 51st St. Realty, LLC, 51 AD3d 469, 470 [2008];cf. Stiver v Good & Fair Carting &Moving, Inc., 9 NY3d 253, 257-258 [2007]). Present—Smith, J.P., Lindley,Sconiers, Pine and Gorski, JJ.