| Petito v City of New York |
| 2012 NY Slip Op 03823 [95 AD3d 1095] |
| May 15, 2012 |
| Appellate Division, Second Department |
| Edward J. Petito, Appellant, v City of New York et al.,Defendants, and Defoe Corp., Respondent. |
—[*1] Edward Garfinkel (McGaw Alventosa & Zajac, Jericho, N.Y. [Joseph Horowitz], ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Kings County (Vaughan, J.), datedFebruary 23, 2011, as granted that branch of the motion of the defendant Defoe Corp. which wasfor summary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the motion of the defendant Defoe Corp. which was for summary judgment dismissingthe complaint insofar as asserted against it is denied.
The plaintiff allegedly sustained injuries when his motorcycle collided with the western endof a barrier that separated a High Occupancy Vehicle (hereinafter HOV) lane from an adjacentlane on the Gowanus Expressway. At the time of the accident, the defendant Defoe Corp.(hereinafter Defoe) was performing emergency repairs on the Gowanus Expressway pursuant to acontract with the State of New York. Pursuant to the contract, traffic barrels were to be placed atthe western end of the barrier to warn motorists. The plaintiff alleged that the accident occurredas a result of Defoe's negligence in placing the HOV lane barrier in the roadway withoutproviding adequate warning of its presence.
At his deposition, the plaintiff testified that the configuration of the lanes on the GowanusExpressway had changed frequently in the weeks before his accident due to the constructionproject. Moreover, he testified that there were no traffic "barrel cones" in the roadway to warnhim of the barrier. After the filing of the note of issue, Defoe moved, inter alia, for summaryjudgment dismissing the complaint insofar as asserted against it. The Supreme Court granted thatbranch of the motion, the plaintiff appeals, and we reverse the order insofar as appealed from.
Generally, a contractual obligation, standing alone, will not give rise to tort liability in favorof a third party (see Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]).Nonetheless, the [*2]Court of Appeals has held that "a party whoenters into a contract to render services may be said to have assumed a duty of care—andthus be potentially liable in tort—to third persons: (1) where the contracting party, infailing to exercise reasonable care in the performance of his [or her] duties, launche[s] a force orinstrument of harm; (2) where the plaintiff detrimentally relies on the continued performance ofthe contracting party's duties and (3) where the contracting party has entirely displaced the otherparty's duty to maintain the premises safely" (id. at 140 [internal quotation marks andcitations omitted]; see Foster v HerbertSlepoy Corp., 76 AD3d 210, 213 [2010]).
Here, Defoe demonstrated its prima facie entitlement to judgment as a matter of law "merelyby coming forward with proof that the plaintiff was not a party to [the emergency repair contract]and that [Defoe] therefore owed no duty of care to the plaintiff" (Foster v Herbert SlepoyCorp., 76 AD3d at 214; see Knox vSodexho Am., LLC, 93 AD3d 642 [2012]). However, in opposition to Defoe's primafacie showing, the plaintiff raised a triable issue of fact as to whether the barrier, when placed inthe roadway without the traffic barrels, constituted a force or instrument of harm "launched" byDefore which rendered the roadway less safe than before the emergency repair project began (see Schosek v Amherst Paving, Inc., 11NY3d 882 [2008]; see alsoGolisano v Keeler Constr. Co., Inc., 74 AD3d 1915, 1916 [2010]; cf. Church vCallanan Indus., 99 NY2d 104 [2002]).
Moreover, although "[a] builder or contractor is justified in relying upon the plans andspecifications which he has contracted to follow unless they are so apparently defective that anordinary builder of ordinary prudence would be put upon notice that the work was dangerous andlikely to cause injury" (Gee v City of New York, 304 AD2d 615, 616 [2003] [internalquotation marks omitted]), triable issues of fact remain as to whether Defoe was negligent infailing to place the traffic barrels in front of the barrier in accordance with the New York StateDepartment of Transportation's plans and specifications (see Henriquez v Parsippany Constr. Co., Inc., 62 AD3d 749, 750[2009]; cf. Gee v City of New York, 304 AD2d 615 [2003]).
We have not considered Defoe's contention regarding proximate cause, since it wasimproperly raised for the first time in its reply papers before the Supreme Court (see Alrobaia v Park Lane MosholuCorp., 74 AD3d 403, 404 [2010]; Fletcher v Westbury Toyota, Inc., 67 AD3d 730, 731 [2009]).
The parties' remaining contentions are without merit.
Accordingly, that branch of Defoe's motion which was for summary judgment dismissing thecomplaint insofar as asserted against it should have been denied. Angiolillo, J.P., Dickerson, Halland Cohen, JJ., concur.