| Dunleavy v Tuttle |
| 2011 NY Slip Op 03542 [83 AD3d 995] |
| April 26, 2011 |
| Appellate Division, Second Department |
| Mark Dunleavy, Appellant, v William Tuttle et al.,Respondents. |
—[*1] Lawrence, Worden, Rainis & Bard, P.C., Melville, N.Y. (Roger B. Lawrence of counsel), forrespondent Riley The Roofer & Siding.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Suffolk County (Emerson, J.), datedOctober 20, 2009, as granted the separate motions of the defendant William Tuttle and thedefendant Riley The Roofer & Siding for summary judgment dismissing the complaint insofar asasserted against each of them.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs,and the defendants' separate motions for summary judgment dismissing the complaint insofar asasserted against each of them are denied.
On the morning of July 29, 2006, the employees of the defendant Riley The Roofer & Siding(hereinafter the contractor) performed repairs to the roof of a house owned by William Tuthill,sued herein as William Tuttle. In order to obtain a reduced price for the repair work, Tuthillagreed to clear his yard of the debris generated by the project, which included scraps of shinglesand packaging materials. The repair work was completed between 11:00 a.m. and noon, andTuthill remained at the premises to clean up debris for approximately two hours after thecontractor's employees left. At approximately 2:15 p.m., the plaintiff, who leased the house fromTuthill, exited through the back door of the house and tripped and fell over a three-foot-longmetal object, which appeared to be a bracket for a television antenna. At his deposition, theplaintiff testified that the bracket was on the roof of the house prior to the date of his accident.However, Tuthill maintained at his deposition that the contractor did not remove any type ofappurtenance from the roof, that the subject bracket had never been on the roof of his house, andthat he had never seen this object prior to the accident. In addition, the contractor's foremantestified at his deposition that he did not recall seeing an antenna on the roof, and that if he hadseen this object in front of a door providing ingress to and egress from the house, he would haveremoved it even though Tuthill had agreed to clean up roofing debris. The contractor and Tuthillseparately moved for summary judgment dismissing the complaint insofar as asserted againsteach of them, relying primarily upon the deposition testimony of the parties. The Supreme Courtgranted the defendants' respective motions, and we reverse.
Although a contractual obligation standing alone does not generally give rise to tort liabilityin favor of a third party, a contractor can be held liable to a third party if it negligently creates adangerous condition by launching a force or instrument of harm (see Espinal v Melville SnowContrs., 98 NY2d 136, 141-142 [2002]; Bodenmiller v Thermo Tech Combustion, Inc., 80 AD3d 719[2011]; George v Marshalls of [*2]MA, Inc., 61 AD3d 925, 928 [2009]). Here, the contractorfailed to make a prima facie showing that it did not create a dangerous condition. The depositionsof the parties revealed that there are triable issues of fact as to whether the metal bracket whichcaused the plaintiff's fall was on the roof before the contractor performed its repair work, andwhether the contractor's employees were working on the portion of the roof where the bracketwas allegedly located. Furthermore, in view of the plaintiff's deposition testimony that thebracket was on the roof prior to the date that the repair work was performed, and testimonyindicating that the contractor's employees may have been working on the portion of the roofwhere the bracket was allegedly located, there is sufficient circumstantial evidence to raise atriable issue of fact as to whether the contractor's employees removed the bracket from the roofand discarded it in front of the rear door of the house, thus creating the allegedly dangerouscondition which caused the accident (seeBodenmiller v Thermo Tech Combustion, Inc., 80 AD3d 719 [2011]; Golisano v Keeler Constr. Co., Inc., 74AD3d 1915 [2010]; Bettineschi vHealy Elec. Contr., Inc., 73 AD3d 1109, 1110 [2010]; George v Marshalls of MA,Inc., 61 AD3d at 929; Considine v Cinganelli, 280 AD2d 635 [2001]).
Similarly, in light of the conflicting deposition testimony, Tuthill failed to eliminate alltriable issues of fact as to whether he created or had actual or constructive notice of the allegeddangerous condition, and thus breached his obligation to maintain his property in a reasonablysafe condition (see Bradley v DiPaterioMgt. Corp., 78 AD3d 1096 [2010]; Andrini v Navarra, 49 AD3d 575, 576 [2008]). Dillon, J.P., Florio,Balkin and Eng, JJ., concur.