| Petry v Hudson Val. Pavement, Inc. |
| 2010 NY Slip Op 08919 [78 AD3d 1145] |
| November 30, 2010 |
| Appellate Division, Second Department |
| Cynthia Petry et al., Respondents, v Hudson ValleyPavement, Inc., et al., Appellants. |
—[*1] Pennock, Breedlove & Noll, LLP, Clifton Park, N.Y. (Sarah I. Goldman of counsel), forappellant Pizzagalli Construction Company. Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany, N.Y. (James E. Lonanoof counsel), for appellant Ben Ciccone, Inc. Robert P. Cusumano, Hopewell Junction, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the defendants separately appealfrom an order of the Supreme Court, Dutchess County (Brands, J.), dated October 7, 2009, whichdenied their separate motions for summary judgment dismissing the complaint insofar as assertedagainst each of them.
Ordered that the order is modified, on the law, by deleting the provisions thereof denying themotions of the defendants Ben Ciccone, Inc., and Pizzagalli Construction Company for summaryjudgment dismissing the complaint insofar as asserted against each of them and substitutingtherefor provisions granting those motions; as so modified, the order is affirmed, with one bill ofcosts payable by the plaintiffs to the defendants Ben Ciccone, Inc., and Pizzagalli ConstructionCompany, and one bill of costs payable by the defendant Hudson Valley Pavement, Inc., to theplaintiffs.
This action arises from an accident that occurred on November 8, 2004, when the injuredplaintiff allegedly tripped and fell over a nail that was protruding out of the asphalt surface of aparking lot owned by her employer. The defendant Hudson Valley Pavement, Inc. (hereinafterHudson Valley), under contract with either the defendant Ben Ciccone, Inc. (hereinafterCiccone), or the defendant Pizzagalli Construction Company (hereinafter Pizzagalli), performedwork in the parking lot on November 5, 2004, which involved driving nails into the parking lotsurface. Ciccone also performed work in the parking lot on November 5, 2004.
The injured plaintiff and her husband, suing derivatively, commenced this action. TheSupreme Court denied the defendants' separate motions for summary judgment dismissing thecomplaint insofar as asserted against each of them.[*2]
Generally, a contractual obligation standing alone will notgive rise to tort liability in favor of a third party (see Espinal v Melville Snow Contrs., 98NY2d 136, 138 [2002]). However, such liability may be assigned where, inter alia, a contractingparty "negligently creates or exacerbates a dangerous condition" or "has entirely displaced theother party's duty to maintain the premises safely" (id. at 140-142).
Here, Ciccone and Pizzagalli established their prima facie entitlement to judgment as amatter of law by demonstrating, among other things, that they owed no duty directly to theinjured plaintiff, and that they did not create or exacerbate the allegedly dangerous condition onthe parking lot (see Espinal v Melville Snow Contrs., 98 NY2d at 140). In opposition, theplaintiffs failed to raise a triable issue of fact. The mere fact that Ciccone performed work at theparking lot prior to the subject accident, where such work did not involve driving nails into thepavement, was insufficient to raise a triable issue of fact as to whether Ciccone created theallegedly dangerous condition. Furthermore, contrary to the plaintiffs' contention, they failed toraise a triable issue of fact as to whether Pizzagalli or Ciccone entirely displaced the propertyowner's duty to maintain the premises in a reasonably safe condition.
However, Hudson Valley failed to establish its prima facie entitlement to judgment as amatter of law dismissing the complaint insofar as asserted against it. Although Hudson Valleydemonstrated, prima facie, that it owed no duty directly to the injured plaintiff, Hudson Valleyfailed to demonstrate that it did not negligently create or exacerbate a dangerous condition, thuslaunching an instrumentality of harm (see Espinal v Melville Snow Contrs., 98 NY2d at142; Keese v Imperial Gardens Assoc., LLC, 36 AD3d 666, 668 [2007]). Moreover,Hudson Valley failed to eliminate all triable issues of fact as to whether its conduct was aproximate cause of the subject accident. Since Hudson Valley did not tender "sufficient evidenceto demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68NY2d 320, 324 [1986]), it failed to meet its prima facie burden and, thus, it is not necessary toconsider the sufficiency of the plaintiffs' opposition papers (see Winegrad v New York Univ.Med. Ctr., 64 NY2d 851, 853 [1985]).
Accordingly, the Supreme Court properly denied Hudson Valley's motion for summaryjudgment dismissing the complaint insofar as asserted against it, but erred in denying the motionsof Ciccone and Pizzagalli for summary judgment dismissing the complaint insofar as assertedagainst each of them. Skelos, J.P., Fisher, Santucci and Leventhal, JJ., concur.