| Farrell v City of New York |
| 2011 NY Slip Op 02839 [83 AD3d 655] |
| April 5, 2011 |
| Appellate Division, Second Department |
| Janine Farrell, Appellant, v City of New York et al.,Defendants, and Grace Industries, Inc., et al., Respondents. |
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In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Saitta, J.), dated September 22, 2009, which granted themotion of the defendants Grace Industries, Inc., and Grace Industries, Inc./El Sol Contracting &Construction Inc., J.V., for summary judgment dismissing the complaint insofar as assertedagainst them.
Ordered that the order is affirmed, with costs.
At approximately 6:20 a.m. on May 15, 2002, the plaintiff was driving in theManhattan-bound left HOV lane on the Gowanus Expressway, approaching the Brooklyn BatteryTunnel, when her vehicle allegedly was struck by road debris identified as a brake shoe. Thebrake shoe went through the windshield and struck the plaintiff in the face, rendering herunconscious. At the time of the accident, the defendants Grace Industries, Inc., and GraceIndustries Inc./El Sol Contracting & Construction Inc., J.V. (hereinafter together the Gracedefendants), were performing redecking and structural steel replacement work on the GowanusExpressway pursuant to a contract with the State of New York. The Supreme Court granted theGrace defendants' motion for summary judgment dismissing the complaint insofar as assertedagainst them. We affirm.
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, 140 [2002]).However, a party who enters into a contract to render services may be said to have assumed aduty of care, and thus be potentially liable in tort to third persons where (1) the contracting party,in failing to exercise reasonable care in the performance of its duties, launches a force orinstrument of harm, (2) the plaintiff detrimentally relies on the continued performance of thecontracting party's duties, or (3) the contracting party has entirely displaced the other party's dutyto maintain the premises safely (id. at 140).
Here, the Grace defendants established their prima facie entitlement to judgment as a [*2]matter of law by demonstrating that their contract with the Statewas limited and did not entirely displace the State's duty to maintain the roadway (see Churchv Callanan Indus., 99 NY2d 104 [2002]; cf. Palka v Servicemaster Mgt. Servs.Corp., 83 NY2d 579, 588-589 [1994]). Additionally, the evidence failed to show that theplaintiff detrimentally relied upon the Grace defendants' continued performance of their duty(see Bugiada v Iko, 274 AD2d 368 [2000]), or that the Grace defendants "launched aforce or instrument of harm" (Moch Co. v Rensselaer Water Co., 247 NY 160, 168[1928]). The Grace defendants demonstrated that they did not cause the brake shoe to be on theroadway, that they did not know how long it was there, and that they did not have any duty toremove nonconstruction roadway debris. In opposition, the plaintiff failed to raise a triable issueof fact.
In light of our determination, there is no need to address the parties' remaining contentions.Dillon, J.P., Leventhal, Chambers and Austin, JJ., concur.