| Davies v Ferentini |
| 2010 NY Slip Op 09175 [79 AD3d 528] |
| December 14, 2010 |
| Appellate Division, First Department |
| Thomas Davies et al., Appellants, v Peter Ferentini et al.,Defendants, and Home Depot U.S.A., Inc., et al., Respondents. |
—[*1] Law Office of Charles J. Siegel, New York (Christopher A. South of counsel), for Home DepotU.S.A., Inc., RIV Construction Group, Inc. and Eastview Holdings LLC, respondents. Milber Makris Plousadis & Seiden, LLP, Woodbury (Thomas M. Fleming II of counsel), for JohnMeyer Consulting, Planning, Engineering, Landscape Architecture and Land Surveying, P.C.,respondents. Connors & Connors, P.C., Staten Island (Robert J. Pfuhler of counsel), for Shawn's Lawns, Inc.,respondent.
Order, Supreme Court, New York County (Paul Wooten, J.), entered February 5, 2010, which,to the extent appealed from, as limited by the briefs, granted the motions of defendants Home DepotU.S.A., Inc., RIV Construction Group, Inc., John Meyer Consulting, Planning, Engineering, LandscapeArchitecture and Land Surveying, P.C., Shawn's Lawns, Inc. and Eastview Holdings LLC for summaryjudgment dismissing the complaint and all cross claims as against them, unanimously affirmed, withoutcosts.
In this personal injury action which arose out of a motor vehicle accident at an intersection onRoute 9A, a New York State arterial highway, and a temporary access road to the construction site fora Home Depot store, plaintiffs have failed to submit competent evidence to raise triable issues of fact asto whether defendants-respondents created an unsafe condition which was a proximate cause ofplaintiffs' injuries. Plaintiffs allege that defendants-respondents were negligent in failing to install a type Iend assembly box beam guide rail to the blunt ends of the guide rail after the guide rail was cut in orderto allow temporary access to the construction site. Instead, type II end assemblies were installed.According to plaintiffs, type I end assemblies would have prevented plaintiffs' vehicle from flipping overand landing on its roof. It is undisputed that the guide rail at issue is located on a right-of-way owned byNew York State and that the New York State Department of Transportation (DOT) is the agencyvested with the authority to control the right-of-way.[*2]
Plaintiffs' sole remaining claim against Home Depot, which wasconstructing a store on land abutting the State's right-of-way, is that Home Depot proposed the use ofthe type II end assemblies. Plaintiffs rely on the deposition testimony of nonparty witness KennethFranco, a permit inspector at the DOT, that Home Depot proposed the installation of type II endassemblies. Although at one point, Franco's testimony is ambiguous, when read as a whole, hecontinuously stated that the engineer on the Home Depot project, defendant-respondent JMC,suggested the type II end assemblies. As plaintiffs submitted no other evidence in support of their claimthat Home Depot participated in the decision-making process concerning the type II end assemblies,the motion court properly granted Home Depot's motion for summary judgment dismissing thecomplaint as against it (see Estate of Hamzaviv Dewberry-Goodkind, Inc., 24 AD3d 184 [2005], lv denied 7 NY3d 704 [2006]).
Defendant-respondent Shawn's Lawns was hired by defendant-respondent RIV, the generalcontractor on the Home Depot construction site, to perform site excavation work. As part of its work,it was directed to cut the guide rail. Cutting the guide rail was done pursuant to sketches provided bythe DOT, and plaintiffs submitted no evidence to refute this claim. Moreover, Shawn's Lawns had norole in the selection of the type II end assemblies. The fact that the DOT selected the type II endassemblies and approved of their installation was confirmed by the deposition testimony of Shawn'sLawns' president, JMC's project manager, RIV's supervisor of construction, and two nonpartyemployees of the DOT.
Since Shawn's Lawns' work was performed pursuant to the DOT's sketches and it was ultimatelyconfirmed that the type II end assemblies were properly installed pursuant to the DOT's specifications,Shawn's Lawns fulfilled its contract and did not launch a force or instrument of harm (see Espinal vMelville Snow Contrs., 98 NY2d 136 [2002]; Luby v Rotterdam Sq., L.P., 47 AD3d 1053 [2008]). Accordingly, themotion court properly granted Shawn's Lawns motion for summary judgment dismissing the complaintand all cross claims as against it.
Defendant-respondent JMC entered into a limited written contract with Home Depot to provideengineering consulting services and to serve as a facilitator to obtain the necessary permits for the HomeDepot construction project. Plaintiffs claim that JMC proposed the type II end assemblies in sketches itprovided to the DOT and that the deposition testimony of Franco of the DOT creates an issue of factas to whether it was JMC who proposed the type II end assemblies and not the DOT as claimed byseveral other witnesses, including two other employees of the DOT. With regard to the threshold issueas to whether JMC owed a duty to plaintiffs, and applying the Espinal factors, the actions ofJMC, in providing construction drawings calling for the installation of the type II end assembliespursuant to the DOT's directives, review, inspection and approval, do not rise to the requisite standardof creating a dangerous condition so as to be deemed to have launched a force or instrument of harm(see Church v Callanan Indus., 99 NY2d 104 [2002]).
Assuming arguendo that Franco's unsubstantiated statement, that it was his understanding that JMCrecommended the use of type II end assemblies, was sufficient to raise a triable issue of fact that JMCinitially proposed the use of type II end assemblies in drawings submitted to the DOT, the DOT still hadthe ultimate responsibility for approving the use of and installation of the type II end assemblies andcould have overidden JMC's suggestion. Thus, since JMC had no control over the type of endassemblies that would ultimately be installed, JMC is not liable to the plaintiffs (see Estate ofHamzavi, 24 AD3d 184). Accordingly, the motion court properly [*3]granted JMC's motion for summary judgment dismissing the complaintand all cross claims as against it.
We have considered plaintiffs' remaining arguments and find them unavailing.Concur—Sweeny, J.P., Moskowitz, Renwick, DeGrasse and RomÁn, JJ. [PriorCase History: 2010 NY Slip Op 30263(U).]