A unanimous panel of the Appellate Division, First Department, has ruled that New York City does not have to indemnify three companies facing a pair of wrongful death suits resulting from the deadly 2008 collapse of a construction crane on the Upper East Side. Donald Leo, who was operating the crane, and Ramadan Kurtaj, who was working in a trench on the site, were both killed by the collapse. Their estates sued 1765 First Associates LLC, the developer of the site; Leon D. DeMatteis Construction Corp., the site manager; and Sorbara Construction Corp., which operated the crane. The three companies filed cross-claims seeking indemnification from the city, arguing it failed in its duty to keep the site safe.

Manhattan Supreme Court Justice Paul Feinman (See Profile) dismissed the cross-claim in 2011, and the First Department affirmed. "A municipality is not liable for negligent performance of a governmental function unless there exists a special duty to the injured party, as opposed to a general duty owed to the public," the panel wrote. "Here, nothing in the record indicates that the City assumed an affirmative duty, either through promises or acts, to ensure the safety of the crane on the construction defendants’ behalf. Rather, the City took steps to ensure the safety of the crane as an exercise of its duty to the general public."

A four-judge panel of Justices Richard Andrias (See Profile), Dianne Renwick (See Profile), Helen Freedman (See Profile) and Rosalyn Richter (See Profile) decided In re East 91st Street Crane Collapse Litigation, 117294/08.