| Hahn v Tops Mkts., LLC |
| 2012 NY Slip Op 03331 [94 AD3d 1546] |
| April 27, 2012 |
| Appellate Division, Fourth Department |
| Bethanne M. Hahn et al., Respondents, v Tops Markets,LLC, et al., Defendants, and Concept Construction Corporation et al., Appellants. Tops Markets,LLC, Third-Party Plaintiff-Respondent, v Concept Construction Corporation, Third-PartyDefendant-Appellant. |
—[*1] Capehart & Scatchard, P.A., Elmira (Matthew R. Litt of counsel), for defendant-appellantIndustrial Power and Lighting Corp. Dixon & Hamilton, LLP, Getzville (Dennis P. Hamilton of counsel), for third-partyplaintiff-respondent. Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of counsel), forplaintiffs-respondents.
Appeals from an order of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.),entered July 13, 2011 in a personal injury action. The order, insofar as appealed from, denied themotions of Concept Construction Corporation and Industrial Power and Lighting Corp. forsummary judgment.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained byBethanne M. Hahn (plaintiff) while shopping at a supermarket owned by defendant-third-partyplaintiff Tops Markets, LLC (Tops). Plaintiff was injured when she was pushing a shopping cartdown an aisle and a front wheel on the cart became stuck in a small hole in the [*2]floor. The hole in the floor was an uncovered electrical box thatplaintiff did not see before the accident. When the wheel got caught in the hole, the cart abruptlystopped and began to tip over. Plaintiff allegedly injured her shoulder and back when she grabbedthe cart to prevent its contents from spilling onto the floor. Although the store was undergoingsignificant renovations during the time period surrounding the accident, no work was beingperformed at the time the accident occurred, i.e., on the weekend. Defendant-third-partydefendant Concept Construction Corporation (Concept) was the general contractor hired by Topsfor the renovation project, defendant Industrial Power and Lighting Corp. (Industrial) was asubcontractor hired by Concept to perform electrical work and defendant Antonicelli Const., Inc.(Antonicelli) was a contractor hired directly by Tops to remove and replace aisle shelving. Topscommenced a third-party action against Concept seeking indemnification.
Following discovery, Concept moved for summary judgment dismissing the amendedcomplaint and all cross claims against it and the third-party complaint, contending that it owedno duty of care to plaintiff and that its conduct was not the proximate cause of her injuries.Industrial also moved for summary judgment dismissing the amended complaint and all crossclaims against it on the ground that its conduct was not the proximate cause of plaintiff's injuries.According to both Concept and Industrial, Antonicelli was solely responsible for the uncoveredelectrical box. In support of its motion, Concept argued that, because Tops hired Antonicelli andConcept did not supervise or control Antonicelli's work, Concept could not be held liable forinjuries caused by the negligence of Antonicelli. Concept and Industrial appeal from an orderinsofar as it denied their motions. We affirm.
Even assuming, arguendo, that Industrial established its entitlement to judgment as a matterof law, we conclude that plaintiff submitted sufficient evidence in opposition to Industrial'smotion to raise an issue of fact whether Industrial, rather than Antonicelli, was responsible forleaving the electrical box uncovered (see generally Zuckerman v City of New York, 49NY2d 557, 562 [1980]). The evidence submitted by plaintiff also raised issues of fact regardingwhich party was responsible for ensuring that the electrical box was covered and which party wasresponsible for ensuring that the area in question was free from dangerous conditions. We rejectIndustrial's contention that Supreme Court erred in denying its motion on the ground that itsconduct was not the proximate cause of the accident. We note that, " '[a]s a general rule, issues ofproximate cause[, including superceding cause,] are for the trier of fact' " (Bucklaew v Walters, 75 AD3d1140, 1142 [2010]; see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 312 [1980],rearg denied 52 NY2d 784, 829 [1980]), and this case does not present an exception tothe general rule. Although "[t]here are certain instances . . . where only oneconclusion may be drawn from the established facts and where the question of legal cause maybe decided as a matter of law" (Derdiarian, 51 NY2d at 315), here, we conclude thatmore than one conclusion may be drawn from the established facts.
We reject Concept's contention that the court erred in denying those parts of its motion forsummary judgment dismissing the amended complaint and all cross claims against it on theground that it owed no duty to plaintiff. We conclude that, although Concept met its initialburden on those parts of the motion, plaintiff raised an issue of fact whether Concept, in failingto ensure that the hole was covered or that the dangerous condition was cured, thereby "'launche[d] a force or instrument of harm' " (Espinal v Melville Snow Contrs., 98 NY2d136, 140 [2002]), "or otherwise made the construction area 'less safe than before the constructionproject began,' " and thus owed a duty to plaintiff (Golisano v Keeler Constr. Co., Inc., 74 AD3d 1915, 1916 [2010]).Finally, we conclude that the court properly denied Concept's motion insofar as it soughtsummary judgment dismissing the third-party complaint. Present—Centra, J.P., Peradotto,Lindley, Sconiers and Martoche, JJ.