| Hill v Fence Man, Inc. |
| 2010 NY Slip Op 08704 [78 AD3d 1002] |
| November 23, 2010 |
| Appellate Division, Second Department |
| Stacey Ann Hill et al., Respondents, v Fence Man, Inc.,Respondent-Appellant, and Town of Huntington et al.,Appellants-Respondents. |
—[*1] McLaughlin & Stern, LLP, New York, N.Y. (Paul H. Levinson of counsel), forrespondent-appellant. Galasso, Langione, Catterson & LoFrumento, LLP, Garden City, N.Y. (James R. Langione ofcounsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendants Town ofHuntington and Town of Huntington Highway Department appeal, as limited by their brief, from(1) so much of an order of the Supreme Court, Suffolk County (Pines, J.), entered December 22,2008, as denied that branch of their cross motion which was for summary judgment dismissingthe complaint insofar as asserted against them and (2) so much of an order of the same courtdated July 22, 2009, as denied that branch of their motion which was denominated as one forleave to renew and reargue, but which was, in actuality, one for leave to reargue that branch oftheir prior cross motion which was for summary judgment dismissing the complaint insofar asasserted against them, and the defendant Fence Man, Inc., cross-appeals, as limited by its brief,from so much of the order dated July 22, 2009, as granted that branch of the motion of thedefendants Town of Huntington and Town of Huntington Highway Department which wasdenominated as one for leave to renew and reargue, but which was, in actuality one for leave toreargue their opposition to its motion for summary judgment dismissing the complaint and allcross claims insofar as asserted against it, and, upon reargument, vacated the determination in theorder entered December 22, 2008, granting its motion, and thereupon denied its motion.
Ordered that the order entered December 22, 2008, is affirmed insofar as appealed from; andit is further,
Ordered that the appeal from the order dated July 22, 2009, is dismissed, as no appeal liesfrom an order denying reargument; and it is further,
Ordered that the order dated July 22, 2009, is affirmed insofar as cross-appealed from; and itis further,[*2]
Ordered that one bill of costs is awarded to the plaintiffs,payable by the defendants Town of Huntington and Town of Huntington Highway Department,and one bill of costs is awarded to the defendants Town of Huntington and Town of HuntingtonHighway Department, payable by the defendant Fence Man, Inc.
On April 28, 2006, the injured plaintiff, Stacey Ann Hill, allegedly slipped and fell on a stripof white, reflective paint, constituting the stop line at the intersection of Dickinson Avenue andDawn Drive in East Northport. The stop line had been painted on the day prior to the accident bythe defendant Fence Man, Inc. (hereinafter Fence Man), a contractor hired by the defendantsTown of Huntington and Town of Huntington Highway Department (hereinafter together theTown) for various pavement marking projects. The plaintiffs commenced this action against boththe Town and Fence Man, alleging negligence in the painting of the stop line. Fence Man movedand the Town cross-moved, inter alia, for summary judgment dismissing the complaint insofar asasserted against each of them. The Supreme Court, in an order entered December 22, 2008,granted Fence Man's motion, but denied the Town's cross motion. In an order dated July 22,2009, the Supreme Court denied that branch of the Town's motion, denominated as one for leaveto renew and reargue, but which was, in actuality, for leave to reargue that branch of the Town'sprior cross motion which was for summary judgment dismissing the complaint insofar as assertedagainst it. In the same order, the Supreme Court granted the Town leave to reargue its oppositionto Fence Man's prior motion, and thereupon denied that branch of Fence Man's motion whichwas for summary judgment dismissing the complaint and all cross claims insofar as assertedagainst it. The Town appeals from the order entered December 22, 2008. The Town appeals, andFence Man cross-appeals, from the portions of the order made upon reargument that wereadverse to each of them, respectively.
The Town conclusively established that no prior written notice of the alleged dangerouscondition was ever provided to it, as required by local law (see Town Code of Town ofHuntington § 174-3 [A]; § 174-5; Yarborough v City of New York, 10 NY3d 726, 727 [2008]; Kiszenik v Town of Huntington, 70AD3d 1007 [2010]). However, the Town failed to meet its burden of establishing its primafacie entitlement to judgment as a matter of law because its submissions failed to eliminate alltriable issues of fact as to whether Fence Man, as its agent, caused or created the allegedlydangerous condition, for which the Town may be liable based upon its nondelegable duty to keepthe street in a reasonably safe condition (see Lopes v Rostad, 45 NY2d 617, 623 [1978];Tumminia v Cruz Constr. Corp., 41AD3d 585 [2007]; Librizzi v Townof Huntington, 34 AD3d 755 [2006]; Cabrera v City of New York, 21 AD3d 1047, 1048 [2005];Kupfer v Village of Briarcliff Manor, 288 AD2d 269 [2001]; Ricciuti v Village ofTuckahoe, 202 AD2d 488 [1994]; Matteucci v County of Nassau, 274 AD2d 422[2000]; Combs v Incorporated Vil. of Freeport, 139 AD2d 688, 689 [1988]).
Since the Town failed to establish its entitlement to judgment as a matter of law, it is notnecessary to consider the sufficiency of the plaintiffs' opposition papers (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr.,64 NY2d 851, 853 [1985]; Cabrera v City of New York, 21 AD3d at 1048; Combs vIncorporated Vil. of Freeport, 139 AD2d at 689). Accordingly, the Supreme Court properlydenied that branch of the Town's cross motion which was for summary judgment dismissing thecomplaint insofar as asserted against it.
Fence Man failed to meet its burden of proving its prima facie entitlement to judgment as amatter of law because, even though contractual obligations alone will not subject a contractor totort liability as to a third party (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140[2002]), Fence Man's submissions failed to eliminate all triable issues of fact as to whether, inallegedly failing to exercise reasonable care in the performance of its duties, it launched a forceor instrument of harm, and thereby potentially subjected itself to liability to the plaintiffs (seeEspinal v Melville Snow Contrs., 98 NY2d at 140; George v Marshalls of MA, Inc., 61 AD3d 925 [2009]) and to theTown. Since the Supreme Court initially overlooked this basis for Fence Man's potential liabilityto the plaintiffs, all of the parties waived any objection to the Town's standing to oppose orreargue its opposition to that branch of Fence Man's initial motion which was for summaryjudgment dismissing the complaint insofar as asserted against Fence Man, and Fence Man maybe liable to the Town for contribution regardless of the extent of the duty it owed directly to theplaintiffs, the Supreme Court properly granted the Town leave to reargue its opposition to FenceMan's initial motion (see CPLR 2221 [d]).[*3]
Since Fence Man failed to establish its entitlement tojudgment as a matter of law it is not necessary to consider the sufficiency of the oppositionpapers submitted by the plaintiffs or the Town in connection with Fence Man's initial motion(see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851, 853 [1985]; Mosca v OCE Holding, Inc., 71 AD3d 1103 [2010]; Cooper v American Carpet & RestorationServs., Inc., 69 AD3d 552, 553 [2010]). Accordingly, upon reargument, the SupremeCourt properly denied Fence Man's motion for summary judgment dismissing the complaint andall cross claims insofar as asserted against it.
The parties' remaining contentions are without merit. Skelos, J.P., Eng, Belen and Hall, JJ.,concur.