| Bodenmiller v Thermo Tech Combustion, Inc. |
| 2011 NY Slip Op 00480 [80 AD3d 719] |
| January 25, 2011 |
| Appellate Division, Second Department |
| Edward L. Bodenmiller, Respondent, v Thermo TechCombustion, Inc., Appellant. |
—[*1] Davis & Hersh, LLP, Islandia, N.Y. (Cary M. Greenberg of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Suffolk County (Whelan, J.), dated April 9, 2010, which denied its motionfor summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
During the 12-day period between December 19 and December 30, 2005, the defendant,Thermo Tech Combustion, Inc., pursuant to a contract with the Suffolk County Department ofPublic Works, removed six oil burners from, and installed new gas burners and a hot water heaterin, a boiler room located in the headquarters building of the Suffolk County Police Department'sMarine Bureau. On January 9, 2006, the plaintiff, a Suffolk County police officer, allegedly wasinjured when he slipped down steps in the building's rear stairwell, which was directly beneaththe boiler room. Thereafter, he commenced this action against the defendant, alleging that heslipped on a mixture of oil and water that had dripped through a hole in the boiler room floor tothe stairwell below, and that the defendant created the dangerous condition by negligentlyperforming its contractual obligations. After discovery was completed, the defendant moved forsummary judgment dismissing the complaint. It argued, inter alia, that it had no duty to theplaintiff and had not created the condition that allegedly caused his injuries. The Supreme Courtdenied the motion, and the defendant appeals.
Generally, a contractual obligation, standing alone, will not give rise to tort liability in favorof a third party (see Espinal v Melville Snow Contrs., 98 NY2d 136, 138-139 [2002]; Schwint v Bank St. Commons, LLC,74 AD3d 1312, 1313 [2010]). Nevertheless, a party contracting to render services maybecome liable in tort to a third party when, as alleged here, it negligently creates or exacerbates adangerous condition (see Espinal v Melville Snow Contrs., 98 NY2d at 141-142). Here,the defendant established its prima facie entitlement to judgment as a matter of law by submittingevidence that in its performance of its contractual obligations it did not create or exacerbate adangerous condition in the stairwell (id.; see Foster v Herbert Slepoy Corp., 76 AD3d 210, 213-214 [2010];[*2]Grobv Kings Realty Assoc., 4 AD3d 394, 395 [2004]). The plaintiff, however, submittedsufficient circumstantial evidence to raise a triable issue of fact as to whether the defendantcreated the allegedly dangerous condition that caused his injuries (see Lackowitz v City of Yonkers, 29AD3d 744 [2006]; Sweeney v D & J Vending, 291 AD2d 443, 443-444 [2002];cf. Grob v Kings Realty Assoc., 4 AD3d at 395). Therefore, the Supreme Court properlydenied the defendant's motion for summary judgment dismissing the complaint. Dillon, J.P.,Balkin, Belen and Austin, JJ., concur.