| Winne v Town of Duanesburg |
| 2011 NY Slip Op 05927 [86 AD3d 779] |
| July 14, 2011 |
| Appellate Division, Third Department |
| Sally Winne, Respondent, v Town of Duanesburg et al.,Defendants, and Florida Gulf Construction Company, Doing Business as CranbrookConstruction, Respondent, and John M. McDonald Engineering, P.C.,Appellant. |
—[*1] Finkelstein & Partners, L.L.P., Newburgh (Ann R. Johnson of counsel), for Sally Winne,respondent. Corrigan, McCoy & Bush, Rensselaer (Scott W. Bush of counsel), for Florida GulfConstruction Company, respondent.
McCarthy, J. Appeal from an order of the Supreme Court (Kramer, J.), entered April 28,2010 in Schenectady County, which denied a motion by defendant John M. McDonaldEngineering, P.C. for summary judgment dismissing the complaint and the cross claim ofdefendant Florida Gulf Construction Company.[*2]
Defendant Town of Duanesburg entered into a contractwith defendant John M. McDonald Engineering, P.C. (hereinafter defendant) to design a newsewer system for a portion of the Town and oversee its implementation. The Town entered into aseparate contract with defendant Florida Gulf Construction Company, doing business asCranbrook Construction (hereinafter Cranbrook), to construct the system. The project requiredCranbrook to place main sewer lines in the roadways, with lateral sewer lines running from themain line to the boundaries of privately-owned properties in the sewer district. Defendant's planscalled for the individual property owners to place a Town-issued, two-by-two wooden stakewhere they wanted the lateral line to enter their property. Cranbrook would install a lateral linefrom the main line to the edge of the road at the location on the property line marked by thehomeowner's stake. Cranbrook would put the end of a two-by-four wooden stake at the end of thelateral line and backfill the hole, with the dirt supporting the stake. That stake marked the spotwhere the homeowner would later need to connect the home's sewer pipes to the lateral line.
After receiving notice and a stake from the Town, plaintiff contacted a private contractor toplace her stake in a location designating where the sewer should be connected to her home. Theyplaced the stake near her house, about 8 to 10 feet from her driveway. Apparently, rather thaninstalling the lateral and placing a two-by-four stake where plaintiff's two-by-two stake had beenlocated, Cranbrook drove its stake into the middle of plaintiff's asphalt driveway. The stake wasalso not placed along the edge of the road at plaintiff's property line, as was customary; the stakewas pounded into her driveway about five feet from the edge of the road. Plaintiff sustainedinjuries when, unaware that a stake had been placed in her driveway, she tripped over it. Shecommenced this action to recover for her injuries. Cranbrook cross-claimed against itscodefendants for contribution. Defendant moved for summary judgment dismissing both thecomplaint and Cranbrook's cross claim against it. Supreme Court denied the motion. Defendantappeals.
We affirm. "When considering a motion for summary judgment, courts must view theevidence in a light most favorable to the nonmoving party and accord that party the benefit ofevery reasonable inference from the record proof, without making any credibility determinations"(Black v Kohl's Dept. Stores, Inc.,80 AD3d 958, 959 [2011] [citations omitted]). "[L]iability for a dangerous or defectivecondition on property is generally predicated upon ownership, occupancy, control or special useof the property" (Turrisi v Ponderosa, Inc., 179 AD2d 956, 957 [1992]). Defendant'scontract with the Town provides that defendant "will not supervise, direct, control, or haveauthority over or be responsible for [Cranbrook's] means, methods, techniques, sequences, orprocedures of construction" and "will not be responsible for the acts or omissions of[Cranbrook]." Despite this language, employees of defendant and Cranbrook testified atdepositions that defendant's inspectors were present at the job site with Cranbrook's employeesevery day and oversaw the installation of every lateral line and the accompanying stakes.Defendant's design plans called for the placement of a stake at the end of each lateral line.
Cranbrook's employee testified that if a homeowner did not place the two-by-two stake toidentify where the lateral should be installed, defendant's inspectors would direct Cranbrookwhere to place the lateral. Plaintiff testified that she saw her private contractor pound the stakeinto the ground, but her private contractor testified that he did not do so. Plaintiff's privatecontractor testified that plaintiff's two-by-two stake may have been leaned against her housewhere she wanted the sewer line, rather than pounded into the ground near the property line alongthe road as Cranbrook expected. Under that scenario, it is possible thatCranbrook—pursuant to established protocol—would have sought direction fromdefendant's inspectors as to where to put [*3]the lateral and,necessarily, the placement of the two-by-four.
Cranbrook's employee further testified that, upon hearing of plaintiff's accident, he wasinformed that defendant's inspector had directed Cranbrook employees to cut off the stake thatthey had pounded into plaintiff's driveway. A Cranbrook employee apparently obeyed thatdirection. While actions after the accident are not directly relevant to defendant's liability, theyare relevant as proof that defendant exerted supervisory authority and control over Cranbrook ingeneral, and in regard to the placement of stakes (see Scudero v Campbell, 288 NY 328,329 [1942]; Hughes v Cold SpringConstr. Co., 26 AD3d 858, 859 [2006]; Cleland v 60-02 Woodside Corp., 221AD2d 307, 308 [1995]). Resolving every factual question and inference in favor of plaintiff andCranbrook, there are triable issues of fact regarding whether defendant exercised control overCranbrook and whether defendant directed Cranbrook as to where to locate the lateral and stakeon plaintiff's property. Accordingly, as there is proof that defendant may have contributed to thecreation of the dangerous condition that led to plaintiff's injuries, defendant was not entitled tosummary judgment dismissing the complaint or cross claim against it (see Saunders v Bryant's Towing, 27AD3d 992, 994 [2006]; Webster vTown of Saugerties, 25 AD3d 861, 862-863 [2006]; Arsenault v Regan Trust,263 AD2d 754, 755 [1999]).
Peters, J.P., Rose, Lahtinen and Malone Jr., JJ., concur. Ordered that the order is affirmed,with one bill of costs.