| Romano v Village of Mamaroneck |
| 2012 NY Slip Op 07976 [100 AD3d 854] |
| November 21, 2012 |
| Appellate Division, Second Department |
| Anna Maria Romano, Appellant, v Village of Mamaronecket al., Respondents. |
—[*1] Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Donald S. Neumann, Jr., ofcounsel), for respondent Village of Mamaroneck. Cascone & Kluepfel, LLP, Garden City, N.Y. (Michael T. Reagan of counsel), forrespondent ELQ Industries, Inc.
In a consolidated action to recover damages for personal injuries, the plaintiff appeals, aslimited by her brief, from so much of an order of the Supreme Court, Westchester County(Lefkowitz, J.), entered May 11, 2011, as granted those branches of the separate motions of thedefendants ELQ Industries, Inc., and the Village of Mamaroneck which were for summaryjudgment dismissing the complaint insofar as asserted against each of them.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
On December 5, 2006, the plaintiff allegedly tripped and fell over a tire mud flap that wasdepressed into the roadway of a parking space located on 231 Mamaroneck Avenue, in theVillage of Mamaroneck. She commenced this consolidated action against the Village and ELQIndustries, Inc. (hereinafter ELQ). ELQ performed resurfacing work on Mamaroneck Avenue inAugust 2004, pursuant to a contract with the Village. The Village and ELQ separately moved,inter alia, for summary judgment dismissing the complaint insofar as asserted against each ofthem, and the Supreme Court granted those branches of the motions.
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]).However, one exception to this general rule is where the contracting party, in failing to exercisereasonable care in the performance of his or her duties, launches a force or instrument of harm(id. at 140; Foster v HerbertSlepoy Corp., 76 AD3d 210, 213 [2010]). Here, ELQ satisfied its prima facie burden ofestablishing its entitlement to judgment as a matter of law by demonstrating that the plaintiff wasnot a party to ELQ's contract with the Village, and that ELQ did not create the allegedlydangerous condition that gave rise to the plaintiff's accident. The Village also satisfied its primafacie burden of establishing its entitlement to judgment as a matter of law by demonstrating thatit did not receive [*2]prior written notice of the conditioncomplained of in the roadway where the plaintiff fell, as required by Village Law § 6-628,and that it did not create the alleged dangerous condition through an affirmative act of negligence(see Cuebas v City of Yonkers, 97AD3d 779, 780 [2012]; cf. Braver vVillage of Cedarhurst, 94 AD3d 933 [2012]).
In opposition to these respective prima facie showings, the plaintiff failed to raise a triableissue of fact. The affidavit from the plaintiff's expert was speculative and conclusory and,therefore, insufficient to raise a triable issue of fact (see Romano v Stanley, 90 NY2d444, 451-452 [1997]; Loughlin v Townof N. Hempstead, 84 AD3d 1035 [2011]; Poelker v Swan Lake Golf Corp., 71 AD3d 857, 858 [2010]).
Accordingly, the Supreme Court properly granted those branches of the separate motions ofELQ and the Village which were for summary judgment dismissing the complaint insofar asasserted against each of them. Rivera, J.P., Chambers, Hall and Lott, JJ., concur.