| Johnson v City of New York |
| 2013 NY Slip Op 00183 [102 AD3d 746] |
| January 16, 2013 |
| Appellate Division, Second Department |
| Scott Johnson, Appellant, v City of New York etal., Respondents. |
—[*1] Furman Kornfeld & Brennan LLP, New York, N.Y. (Neil S. Kornfeld, Sarah R.Levin, and Kathryn Collins of counsel), for respondents City of New York, United StatesTennis Association, Inc., and USTA National Tennis Center, Incorporated. McManus & Richter, P.C., New York, N.Y. (Stephen L. Geller of counsel), forrespondent J.H. Mack, LLC. Jeffrey S. Shein & Associates, P.C., Syosset, N.Y. (Charles R. Strugatz of counsel),for respondent ADCO Electrical Corp.
In an action to recover damages for personal injuries, the plaintiff appeals (1), aslimited by his brief, from so much of an order of the Supreme Court, Queens County(Kerrigan, J.), entered November 2, 2011, as granted those branches of the motion of thedefendants City of New York, United States Tennis Association, Inc., and USTANational Tennis Center, Incorporated, the separate motion of the defendant ADCOElectrical Corp., and the separate motion of the defendant J.H. Mack, LLC, which werefor summary judgment dismissing the causes of action to recover damages forcommon-law negligence insofar as asserted against each of them, and (2) from an orderof the same court entered January 25, 2012, which denied that branch of his motionwhich was for leave to renew and, in effect, upon reargument, adhered to its originaldetermination in the order entered November 2, 2011.
Ordered that the appeal from the order entered November 2, 2011, is dismissed, asthat order was superseded by so much of the order entered January 25, 2012, as wasmade upon reargument; and it is further,
Ordered that the order entered January 25, 2012, is modified, on the law, by deletingthe provision thereof, in effect, upon reargument, adhering to the determination in theorder entered November 2, 2011, granting that branch of the motion the defendantADCO Electrical Corp. which was for summary judgment dismissing the causes ofaction to recover damages for common-law negligence insofar as asserted against it, andsubstituting therefor a provision, in effect, upon reargument, vacating that determinationand thereupon denying that branch of the motion; as so [*2]modified, the order entered January 25, 2012, is affirmedinsofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendants City of New York, UnitedStates Tennis Association, Inc., and USTA National Tennis Center, Incorporated, and thedefendant J.H. Mack, LLC, appearing separately and filing separate briefs, payable bythe plaintiff, and one bill of costs is awarded to the plaintiff, payable by the defendantADCO Electrical Corp.
In August 2008, the plaintiff was working as a culinary supervisor for a food-servicecontractor in the kitchen area of a recently constructed building on the grounds of theNational Tennis Center in Corona, Queens, which was owned by the defendant City ofNew York and leased to the defendant USTA National Tennis Center, Incorporated(hereinafter NTC). The defendant United States Tennis Association, Inc. (hereinafterUSTA), was on the site preparing for the U.S. Open tennis tournament. On August 21,2008, in an office in the kitchen area, the plaintiff attempted to plug his cell phonecharger into an outlet, and allegedly sustained a severe electrical shock. Subsequently, hecommenced this action, inter alia, to recover damages for common-law negligenceagainst the City, USTA, and NTC (hereinafter collectively the City defendants), J.H.Mack, LLC (hereinafter Mack), the general contractor responsible for the construction ofthe new building, and ADCO Electrical Corp. (hereinafter ADCO), the subcontractorresponsible for installing the electrical system in the new building.
The city defendants moved, among other things, for summary judgment dismissingthe causes of action to recover damages for common-law negligence insofar as assertedagainst them, and ADCO and Mack each separately moved, among other things, forsummary judgment dismissing the causes of action to recover damages for common-lawnegligence insofar as asserted against each of them. In an order entered November 2,2011, the Supreme Court granted the respective motions. Thereafter, the plaintiff movedfor leave to reargue and renew. In an order entered January 25, 2012, the Supreme Courtdenied renewal and, in effect, upon, reargument, adhered to its original determination.
The Supreme Court properly granted those branches of the city defendants' motionwhich were for summary judgment dismissing the causes of action to recover damagesfor common-law negligence insofar as asserted against them. Liability can be imposedupon a landowner or a lessee who creates a defective condition on the property, or hadactual or constructive notice of the defective condition (see Sanchez v 1710 Broadway,Inc., 79 AD3d 845, 846 [2010]; Gover v Mastic Beach Prop. Owners Assn., 57 AD3d 729,730 [2008]). The city defendants demonstrated their prima facie entitlement to judgmentas a matter of law by presenting evidence that they did not create or have actual orconstructive notice of the allegedly defective condition which caused the plaintiff'sinjuries (see Sanchez v 1710 Broadway, Inc., 79 AD3d at 846). In opposition, theplaintiff failed to raise a triable issue of fact.
The Supreme Court also properly granted those branches of Mack's motion whichwere for summary judgment dismissing the causes of action to recover damages forcommon-law negligence insofar as asserted against it. Ordinarily, the breach of acontractual obligation is not sufficient in and of itself to impose tort liability upon thepromisor to noncontracting parties (see Lotz v Aramark Servs., Inc., 98 AD3d 602, 603[2012]). However, a party who enters into a contract to render services may be said tohave assumed a duty of care and, thus, be potentially liable in tort to third persons whenthe contracting party, in failing to exercise reasonable care in the performance of itsduties, launches an instrument of harm or creates or exacerbates a hazardous condition(see Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]; Gushin v Whispering HillsCondominium I, 96 AD3d 721, 722 [2012]). Mack demonstrated its prima facieentitlement to judgment as a matter of law by presenting evidence that the plaintiff wasnot a party to its contract with NTC and that it did not owe him a duty of care (see Brathwaite v New York CityHous. Auth., 92 AD3d 821, 823 [2012]). In opposition, the plaintiff failed toraise a triable issue of fact as to whether Mack launched an instrument of harm or createdor exacerbated a hazardous condition, as he failed to raise a triable issue as to whetherMack was in any way involved in the allegedly defective installation of the electricalsystem in the subject building.[*3]
However, the Supreme Court erred in grantingthose branches of ADCO's motion which were for summary judgment dismissing thecauses of action to recover damages for common-law negligence insofar as assertedagainst it. ADCO demonstrated its prima facie entitlement to judgment as a matter of lawby demonstrating that the plaintiff was not a party to its subcontract with Mack, and,thus, that it owed him no duty of care (see Petito v City of New York, 95 AD3d 1095, 1096[2012]; Foster v Herbert SlepoyCorp., 76 AD3d 210, 214 [2010]). In opposition, however, the plaintiffsubmitted evidence sufficient to raise a triable issue of fact as to whether ADCOnegligently failed to install ground fault circuit interrupters (hereinafter GFCIs) in thekitchen area of the building, and thereby created the allegedly hazardous condition whichcaused his injuries. Contrary to ADCO's contention, the affidavit of the plaintiff's expertwas not inadequate on the ground that the expert relied solely upon, among other things,the affidavits of the plaintiff's witnesses and photographs, and did not personally inspectthe premises (see Pereira vQuogue Field Club of Quogue, Long Is., 71 AD3d 1104, 1105-1106 [2010]; Torres v W.J. Woodward Constr.,Inc., 32 AD3d 847, 849 [2006]; Ealey v City of New York, 16 AD3d 543, 543-544 [2005]).Moreover, the affidavit from a witness that he had never observed GFCIs in the kitchenarea was not incompetent because he was not an electrician (see Senecal vDrollette, 304 NY 446, 449 [1952]). Indeed, the witness stated that he was familiarwith GFCIs through his work.
The Supreme Court properly denied that branch of the plaintiff's motion which wasfor leave to renew his opposition to the motions of the city defendants and Mack, andproperly, in effect, upon reargument, adhered to its prior determination with respect tothose defendants.
The parties' remaining contentions either are without merit or need not be reached inview of our determination. Rivera, J.P., Balkin, Leventhal and Hinds-Radix, JJ., concur.