| DePascale v E&A Constr. Corp. |
| 2010 NY Slip Op 05505 [74 AD3d 1128] |
| June 22, 2010 |
| Appellate Division, Second Department |
| Joseph DePascale et al., Respondents-Appellants, v E&AConstruction Corp., Defendant/Third-Party Plaintiff-Respondent-Appellant, Peter GisolfiAssociates, Respondent-Appellant, and JMOA Engineering, P.C., et al., Respondents, et al.,Defendants. MCS Floor Covering Services, Inc., Third-Party Defendant/Second Third-PartyPlaintiff-Appellant-Respondent, et al., Third-Party Defendants; Pride Carpet Inc., SecondThird-Party Defendant-Respondent-Appellant. |
—[*1] Marschhausen & Fitzpatrick, P.C., Westbury, N.Y. (Kevin P. Fitzpatrick of counsel), forplaintiffs-respondents-appellants. Brody, O'Connor & O'Connor, Northport, N.Y. (Aisha K. Brosnan and Patricia A. O'Connorof counsel), for defendant/third-party plaintiff-respondent-appellant, and defendant-respondentJMOA Engineering, P.C. (separate briefs filed). Winget, Spadafora & Schwartzberg, LLP, New York, N.Y. (Matthew Tracy and Harris Katzof counsel), for defendant-respondent-appellant. Epstein, Frankini & Grammatico, Woodbury, N.Y. (Russell M. Plotkin of counsel), forsecond third-party defendant-respondent-appellant.
In an action to recover damages for personal injuries, etc., (1) the third-partydefendant/second third-party plaintiff, MCS Floor Covering Services, Inc., appeals, as limited byits brief, from so much of an order of the Supreme Court, Nassau County (Mahon, J.), datedFebruary 5, 2009, as denied those branches of its motion which were for summary judgmentdismissing the complaint and dismissing the third-party complaint insofar as asserted against it,and granted those branches of the motion of the defendant Peter Gisolfi Associates which werefor summary judgment on its cross claims for contractual indemnification and to recoverdamages for breach of contract insofar as asserted against it, (2) the second third-partydefendant, Pride Carpet, Inc., cross-appeals, as limited by its brief, from so much of the sameorder as denied those branches of its motion which were for summary judgment dismissing thecomplaint and dismissing the second third-party [*2]complaint,(3) the defendant/third-party plaintiff, E&A Construction Corp., cross-appeals from so much ofthe same order as denied those branches of the motion of the defendant Peter Gisolfi Associateswhich were for summary judgment dismissing the complaint insofar as asserted against thatdefendant, denied those branches of the motions of the third-party defendant/second third-partyplaintiff, MCS Floor Covering Services, Inc., and the second third-party defendant, Pride CarpetInc., which were for summary judgment dismissing the complaint, and granted those branches ofthe motion of the defendant Peter Gisolfi Associates which were for summary judgment on thecross claims for contractual indemnification and to recover damages for breach of contractinsofar as asserted against it, (4) the defendant Peter Gisolfi Associates cross-appeals, as limitedby its brief, from so much of the same order as denied that branch of its motion which was forsummary judgment dismissing the complaint insofar as asserted against it, and (5) the plaintiffscross-appeal, as limited by their brief, from so much of the same order as granted those branchesof the motion of the defendant JMOA Engineering, P.C., which were for summary judgmentdismissing the complaint insofar as asserted against it, granted those branches of the motion ofthe defendant/third-party plaintiff, E&A Construction Corp., which were for summary judgmentdismissing the complaint insofar as asserted against it, granted those branches of the motion ofthe defendant Anastos Engineering Associates which were for summary judgment dismissing thecomplaint insofar as asserted against it, and denied those branches of their cross motion whichwere for summary judgment on the issue of liability insofar as asserted against the defendantsJMOA Engineering, P.C., E&A Construction Corp., and Anastos Engineering Associates.
Ordered that the cross appeal by the defendant/third-party plaintiff, E&A ConstructionCorp., from so much of the order as denied those branches of the motion of the defendant PeterGisolfi Associates which were for summary judgment dismissing the complaint insofar asasserted against that defendant and denied those branches of the motions of the third-partydefendant/second third-party plaintiff, MCS Floor Covering Services, Inc., and the secondthird-party defendant, Pride Carpet Inc., which were for summary judgment dismissing thecomplaint, is dismissed, as it is not aggrieved by that portion of the order appealed from (seeCPLR 5511); and it is further,
Ordered that the order is modified, on the law and on the facts, (1) by deleting the provisionthereof denying that branch of the motion of the defendant Peter Gisolfi Associates which wasfor summary judgment dismissing the complaint insofar as asserted against it, and substitutingtherefor a provision granting that branch of the motion, (2) by deleting the provision thereofdenying those branches of the motion of the third-party defendant/second third-party plaintiff,MCS Floor Covering Services, Inc., which were for summary judgment dismissing the complaintand dismissing the third-party complaint insofar as asserted against it, and substituting therefor aprovision granting those branches of the motion, (3) by deleting the provision thereof denyingthose branches of the motion of the second third-party defendant, Pride Carpet, Inc., which werefor summary judgment dismissing the complaint and dismissing the second third-partycomplaint, and substituting therefor a provision granting those branches of the motion, (4) bydeleting the provision thereof granting those branches of the motion of the defendant PeterGisolfi Associates which were for summary judgment on its cross claims for contractualindemnification and to recover damages for breach of contract insofar as asserted against thethird-party defendant/second third-party plaintiff, MCS Floor Covering Services, Inc., and thedefendant/third-party plaintiff, E&A Construction Corp., and substituting therefor a provisiondenying those branches of the motion; as so modified, the order is affirmed insofar as appealedfrom by the third-party defendant/second third-party plaintiff, MCS Floor Covering Services,Inc., insofar as cross-appealed from by the second third-party defendant, Pride Carpet, Inc., thedefendant Peter Gisolfi Associates, and the plaintiffs, and insofar as reviewed on the cross appealby the defendant/third-party plaintiff, E&A Construction Corp.; and it is further,
Ordered that one bill of costs is awarded to the third-party defendant/second third-partyplaintiff, MCS Floor Covering Services, Inc., the second third-party defendant, Pride Carpet,Inc., the defendant/third-party plaintiff, E&A Construction Corp., the defendant Peter GisolfiAssociates, and the defendant JMOA Engineering, P.C., payable by the plaintiffs.
"Because a finding of negligence must be based on the breach of a duty, a threshold [*3]question in tort cases is whether the alleged tortfeasor owed a dutyof care to the injured party" (Espinal v Melville Snow Contrs., 98 NY2d 136, 138[2002]). "[A] contractual obligation, standing alone, will generally not give rise to tort liability infavor of a third party" (Stiver v Good &Fair Carting & Moving, Inc., 9 NY3d 253, 257 [2007] [internal quotation marksomitted]). Exceptions to this general rule are: "(1) where the contracting party, in failing toexercise reasonable care in the performance of his duties, launches a force or instrument of harm;(2) where the plaintiff detrimentally relies on the continued performance of the contractingparty's duties; and (3) where the contracting party has entirely displaced the other party's duty tomaintain the premises safely" (id. [citation and internal quotation marks omitted]). Acontracting party launches a force or instrument of harm when, "while engaged affirmatively indischarging a contractual obligation, [it] creates an unreasonable risk of harm to others, orincreases that risk" (Church v Callanan Indus., 99 NY2d 104, 111 [2002]).
Here, the defendants JMOA Engineering, P.C., and E&A Construction Corp. (hereinafterE&A) established their entitlement to judgment as a matter of law by demonstrating that neitherof them owed a duty of care to the plaintiffs (see Espinal v Melville Snow Contrs., 98NY2d at 138; Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d at 257). Inopposition, the plaintiffs failed to raise a triable issue of fact (id.).
Moreover, based on the testimony of the plaintiff Joseph DePascale that he tripped and fellbecause of a height differential of one quarter of an inch between floor tiles, the defendant PeterGisolfi Associates (hereinafter Gisolfi) established its entitlement to judgment as a matter of law,as the alleged defect, which did not have any of the characteristics of a trap or snare, was trivialand, thus, not actionable (see Trincere v County of Suffolk, 90 NY2d 976 [1997]; Zalkin v City of New York, 36 AD3d801 [2007]; Taussig v Luxury Carsof Smithtown, Inc., 31 AD3d 533 [2006]; Sulca v Barry Hers Realty, Inc., 29 AD3d 779, 779-780 [2006]). Inopposition, the plaintiffs failed to raise a triable issue of fact (id.). Accordingly, theSupreme Court should have granted Gisolfi's motion for summary judgment dismissing thecomplaint insofar as asserted against it (see Trincere v County of Suffolk, 90 NY2d at978; Zalkin v City of New York, 36 AD3d at 801; Taussig v Luxury Cars ofSmithtown, Inc., 31 AD3d at 533; Sulca v Barry Hers Realty, Inc., 29 AD3d at779-780).
In light of our determination, E&A's third-party complaint for contractual indemnificationinsofar as asserted against the third-party defendant/second third-party plaintiff, MCS FloorCovering Services, Inc. (hereinafter MCS), and MCS's second third-party complaint forcontractual indemnification against the second third-party defendant, Pride Carpet, Inc., alsoshould have been dismissed (seeNeidhart v K.T. Brake & Spring Co., 55 AD3d 887, 889 [2008]).
The parties' remaining contentions are either academic in light of our determination orwithout merit. Dillon, J.P., Florio, Leventhal and Roman, JJ., concur.