| Martin v Huang |
| 2011 NY Slip Op 05676 [85 AD3d 1132] |
| June 28, 2011 |
| Appellate Division, Second Department |
| Michael Martin, Respondent, v Thomas Huang et al.,Defendants, and Angelo Costa et al., Appellants. |
—[*1] Keller, O'Reilly & Watson, P.C., Woodbury, N.Y. (Erin L. Deacy of counsel), for appellantG.I.C. Construction Company, Inc. Michael D. O'Leary, Bayside, N.Y. and Stuart A. Klein, New York, N.Y. (Christopher M.Slowik of counsel), for respondent (one brief filed).
In an action, inter alia, to recover damages for injury to property, the defendants AngeloCosta and Costa Design appeal, as limited by their brief, from so much of an order of theSupreme Court, Queens County (Grays, J.), dated June 1, 2010, as denied their motion forsummary judgment dismissing the complaint and all cross claims insofar as asserted againstthem, and the defendant G.I.C. Construction Company, Inc., separately appeals, as limited by itsbrief, from so much of the same order as denied its cross motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it.
Ordered that the order is modified, on the law, by deleting the provision thereof denying themotion of the defendants Angelo Costa and Costa Design for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against them, and substituting therefor aprovision granting the motion; as so modified, the order is affirmed insofar as appealed from,with one bill of costs payable by the plaintiff to the defendants Angelo Costa and Costa Design,and one bill of costs payable by the defendant G.I.C. Construction Company, Inc., to the plaintiff.
The plaintiff commenced this action alleging, inter alia, that the retaining wall on hisproperty collapsed due to the negligent planning and performance of excavation work conductedin connection with a construction project on the adjoining property owned by the defendant 63Drive Corp. (hereinafter 63 Drive). The defendant New Main Street & 41st Road Construction(hereinafter New Main) was the general contractor for the construction project, which called forthe construction of four one-family homes. The defendants Angelo Costa and Costa Design(hereinafter together the Costa defendants) entered into a contract with New Main to performcertain architectural services for the construction project. New Main hired the defendant G.I.C.Construction Company, Inc. (hereinafter GIC), as the excavating subcontractor for the project.[*2]
The Supreme Court did not err in denying GIC's motionfor summary judgment dismissing the complaint and all cross claims insofar as asserted againstit. A party who enters into a contract to render services may be said to have assumed a duty ofcare, and thus be potentially liable in tort, to third persons where, inter alia, "the contractingparty, in failing to exercise reasonable care in the performance of his duties, launche[s] a force orinstrument of harm" (Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002][internal quotation marks omitted]; seeMosca v OCE Holding, Inc., 71 AD3d 1103, 1104 [2010]), where it completelydisplaces a landowner's duty to maintain property in a reasonably safe condition pursuant to acomprehensive and exclusive agreement, or where a plaintiff detrimentally relies on thecontinued performance of its contractual duties (see Espinal v Melville Snow Contrs., 98NY2d at 140). Here, GIC's submissions failed to eliminate all triable issues of fact as to whether,in allegedly failing to exercise reasonable care in the performance of its excavation work, itlaunched a force or instrument of harm or completely displaced the landowner's obligations tomaintain the property, or whether a claimant relied on its performance of contractual duties, andthereby potentially subjected itself to liability to the plaintiff (id.; see Collins v J.P. Morgan Chase &Co., 72 AD3d 729, 730 [2010]; Hixon v Congregation Beit Yaakov, 57 AD3d 328, 328 [2008]).Accordingly, the Supreme Court properly denied that branch of GIC's motion which was forsummary judgment dismissing the complaint insofar as asserted against it. Since there are triableissues of fact as to GIC's negligence, the Supreme Court also properly denied those branches ofGIC's motion which were for summary judgment dismissing the cross claims for contribution andindemnification asserted against it (seeShea v Putnam Golf, Inc., 79 AD3d 1013, 1015 [2010]; Bellefleur v Newark Beth Israel Med.Ctr., 66 AD3d 807, 808 [2009]).
However, the Costa defendants demonstrated their prima facie entitlement to judgment as amatter of law dismissing the complaint insofar as asserted against them by establishing that theyowed no duty to the plaintiff in the first instance (see Pulka v Edelman, 40 NY2d 781,782 [1976]; Plaisir v Royal HomeSales, 81 AD3d 799, 801 [2011]); nor did they assume any "duty of care" in theperformance of their contractual obligations (Espinal v Melville Snow Contrs., 98 NY2dat 140). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]). Consequently, the Supreme Court should havegranted that branch of the Costa defendants' motion which was for summary judgment dismissingthe complaint insofar as asserted against them.
The Costa defendants also demonstrated their prima facie entitlement to judgment as a matterof law dismissing the cross claims for contribution and indemnification asserted against them byestablishing that they breached no duty to the plaintiff (see Guerra v St. Catherine of Sienna, 79 AD3d 808, 809 [2010]; Roach v AVR Realty Co., LLC, 41AD3d 821, 824 [2007]). None of the other defendants opposed these branches of the Costadefendants' motion and, therefore, no triable issue of fact was raised (see Corley v Country Squire Apts.,Inc., 32 AD3d 978, 979 [2006]). Accordingly, the Supreme Court should have grantedthose branches of the Costa defendants' motion which were for summary judgment dismissingthe cross claims for contribution and indemnification asserted against them. Skelos, J.P.,Leventhal, Austin and Sgroi, JJ., concur.