| Steinberg v New York City Tr. Auth. |
| 2011 NY Slip Op 07480 [88 AD3d 582] |
| October 25, 2011 |
| Appellate Division, First Department |
| Michael Steinberg et al., Respondents, v New York CityTransit Authority et al., Defendants, and Five Star Electric Corp.,Appellant. |
—[*1] Thomas Torto, New York, for respondents.
Order, Supreme Court, New York County (Michael D. Stallman, J.), entered September 23,2010, which, inter alia, denied defendant Five Star Electric Corp.'s motion for summaryjudgment dismissing the complaint as against it, unanimously affirmed, without costs.
This negligence action arises out of a criminal assault on plaintiff Michael Steinberg as heentered a subway station. Defendant Tareyton Williams allegedly attacked plaintiff withbattery-operated reciprocating saws. He obtained the saws from a site where employees of FiveStar (defendant) were performing work on the station's public address system.
Five Star does not enjoy governmental immunity. First, Five Star is a private contractor(see Matter of S.S. Silberblatt, Inc. v Tax Commn. of State of N.Y., 5 NY2d 635, 641[1959], cert denied 361 US 912 [1959]). Second, subway construction is proprietary, notgovernmental, in character (see Huerta v New York City Tr. Auth., 290 AD2d 33, 38[2001], appeal dismissed 98 NY2d 643 [2002]; compare Altro v Conrail, 130AD2d 612, 613 [1987] [action alleging failure to allocate sufficient resources could not bemaintained against MTA or against Conrail, which was performing "an essential governmentalfunction for the MTA"]). Thus, the doctrine of governmental immunity would not apply in thesecircumstances.
Supreme Court correctly found that, as movant, defendant failed to show that it did notbreach a duty to plaintiff. Defendant relied on hearsay testimony and accident reports submittedwithout an adequate foundation for their admission as business records (see Wen Ying Ji v Rockrose Dev.Corp., 34 AD3d 253, 254 [2006]; compare Buckley v J.A. Jones/GMO, 38 AD3d 461, 462-463[2007]). In view of the testimony of defendant's foreman that it was necessary to safeguard thetools from theft and that defendant's other employees had seen Williams hovering around them,talking and yelling, it cannot be found as a matter of law that Williams's criminal acts wereunforeseeable and therefore a superseding cause of plaintiff's injuries (see Bell v Board ofEduc. of City of N.Y., 90 NY2d 944 [1997]). Concur—Tom, J.P., Catterson, Renwick,Freedman and Manzanet-Daniels, JJ. [Prior Case History: 28 Misc 3d 1237(A), 2010 NYSlip Op 51628(U).]