| Kennedy v Atlas Fence, Inc. |
| 2011 NY Slip Op 08706 [90 AD3d 1122] |
| December 1, 2011 |
| Appellate Division, Third Department |
| Eileen Kennedy et al., Appellants, v Atlas Fence, Inc.,Respondent. |
—[*1] Gambeski & Frum, Elmsford (Donald L. Frum of counsel), for respondent.
Lahtinen, J. Appeal from an order of the Supreme Court (O'Connor, J.), entered August 10,2010 in Ulster County, which granted defendant's motion for summary judgment dismissing thecomplaint.
In April 2006, plaintiff Eileen Kennedy (hereinafter plaintiff) allegedly sustained injurieswhen she tripped over twisted rebar near a fence as she walked across property owned by the Cityof Kingston, Ulster County. About two years earlier, defendant had installed the fence pursuantto a contract with the City. Plaintiff, a City employee who was working at the time of theaccident, and her husband, derivatively, commenced this action against defendant. They assertedthat, while doing work under the contract with the City, defendant had created the condition thatcaused plaintiff's accident when a machine used by defendant to dig post holes for the fencestruck the rebar, causing it to twist and come to the surface, where it remained until plaintiff'saccident. Following discovery, defendant moved for summary judgment dismissing thecomplaint, and Supreme Court granted the motion. Plaintiffs appeal.
Although a contractual obligation generally does not create liability in favor of a third party,there are three recognized exceptions to this general rule (see Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d 253, 257[2007]; Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]). Plaintiffs contendthat they raised a factual issue as to the first exception, which applies where the contracting partyfails to exercise reasonable care when performing the contract and [*2]thereby "creates an unreasonable risk of harm to others, or increasesthat risk" (Church v Callanan Indus., 99 NY2d 104, 111 [2002]; see Espinal vMelville Snow Contrs., 98 NY2d at 142-143). In the context of a summary judgment motion,"[t]he totality of the evidence should be viewed in a light most favorable to the nonmoving partyand we should accord it the benefit of every reasonable inference" (Gadani v Dormitory Auth. of State ofN.Y., 43 AD3d 1218, 1219 [2007]).
Plaintiffs' expert, an engineer, examined the rebar as well as photos taken at the scene on theday of the accident showing the position of the rebar. He opined that the rebar that causedplaintiff's fall could have become so twisted only as a result of the force of constructionequipment. The employee of defendant who operated the machine that dug with an auger at theconstruction site, while stating at his deposition that he did not recall striking any rebar on thisjob, nevertheless acknowledged that rebar is sometimes encountered when digging fence holes,he had hit rebar in prior jobs, and one result of an auger striking rebar is a twisting of the rebar. Anonparty witness who worked at an adjacent firehouse testified that he did not see exposed rebarprior to the fence being installed and he did not recall any construction work in the immediatevicinity between the time of the fence installation and plaintiff's accident. Plaintiff explained that,prior to the date of the accident, she walked a different route. However, that route was blockedbefore her accident; she thus took the route where, on her first time going the other way, shetripped over the twisted rebar. Although much of plaintiffs' proof is based on circumstantialevidence, such proof can defeat a motion for summary judgment (see Seelinger v Town of Middletown,79 AD3d 1227, 1229 [2010]; Magrum v Dee Dee's A Tavern, Inc., 12 AD3d 825, 827 [2004])and, upon review of the proof in the record, we are persuaded that plaintiffs set forth sufficientevidence raising factual issues to avoid summary dismissal of their action.
Peters, J.P., Stein, McCarthy and Garry, JJ., concur. Ordered that the order is reversed, on thelaw, with costs, and motion denied.