In an action to recover damages for personal injuries, (1) the defendant DENNIS ADAMS CONTRACTING, INC. moves for summary judgment dismissing the complaint in its entirety with prejudice together with any and all crossclaims asserted against it, pursuant to CPLR 3212, and dismissing the complaint in its entirety with prejudice along with any and all crossclaims asserted against it, pursuant to CPLR 3211(a)(1) and (7); (2) the defendant OCRAM PROPERTIES LLC moves for summary judgment dismissing the complaint in its entirety with prejudice together with any and all cross-claims against it, pursuant to CPLR 3212, and dismissing the complaint with prejudice against it, pursuant to CPLR 3211(a)(1) and (7); and (3) the defendant POSILLICO CIVIL, INC. moves for summary judgment dismissing the complaint and any and all cross-claims asserted against it with prejudice, pursuant to CPLR 3212: Papers Considered Motion Seq. 1: NYSCEF DOC NO. 74-119; 221-232; 237-246; 257-258; 273 1. Notice of Motion/Statement of material facts/Affirmation of Nick Migliaccio, Esq./Exhibits A-OO/Memorandum of Law/Affidavit of service 2. Response to Statement of material facts/Affirmation of Anthony Tirone, Esq. in opposition/Exhibits A-C; Exhibits A, C, D. E, F, G, S, T, Y, AA, BB, OO/Affidavit of v. P/Affidavit of VDD/Memorandum of Law/Affirmation of service 3. Notice of request for oral argument for defendants’ motions for summary judgment 4. Affirmation of Mark P Bradley, Esq. in partial opposition/Response to statement of material facts 5. Affirmation of Nick Migliaccio, Esq. in reply Motion Seq. 2: NYSCEF DOC NO. 120-124; 247-256; 259-260; 277-278 6. Notice of Motion/Affirmation of Dennis J. Monaco, Esq./Memorandum of law/Statement of material facts/Affidavit of Dennis J. Monaco, Esq. of word count 7. Response to statement of material facts/Affirmation of Anthony R. Tirone, Esq. in opposition/Exhibits A-C/Affidavit of v. P/Affidavit of VDD/Memorandum of law/Affirmation of service 8. Notice of request for oral argument for defendants’ motions for summary judgment 9. Affirmation of Mark P. Bradley, Esq. in partial opposition/Response to statement of material facts 10. Reply affirmation of Dennis J. Monaco, Esq./Affirmation of Dennis J. Monaco, Esq. of word count Motion Seq. 3: NYSCEF DOC NO. 125-159; 261-271; 275-276 11. Notice of motion/Statement of material facts/Affirmation of Mark P. Bradley, Esq./Exhibits A-BB/Affidavit of Jason Damm/Exhibits A-B/Memorandum of law 12. Response to statement of material facts/Affirmation of Anthony R. Tirone, Esq./Exhibits A-D/Affidavit of v. P/Affidavit of VDD/Memorandum of law/Affirmation of service 13. Notice of request for oral argument for defendants’ motions for summary judgment 14. Affirmation of Mark P. Bradley in reply/Memorandum of law DECISION & ORDER Factual and Procedural Background The infant plaintiff sustained injuries on April 12, 2019 at approximately 8:00 p.m. when she tripped and fell in the roadway on Westchester Avenue, in front of 316 Westchester Avenue, Port Chester, New York (hereinafter “316 Westchester Avenue” or “premises”). While the infant plaintiff was on the ground, she was hit by a motor vehicle owned and operated by defendant Seijas1 (Seijas). At the time of the accident, defendant Ocram LLC (“Ocram”) owned the building at 316 Westchester Avenue, which was undergoing renovations. Ocram contracted with general contractor, defendant Dennis Adams Contracting, Inc. (“DA Contracting”), for the renovation work at 316 Westchester Avenue which included roofing, siding and renovating the inside of the house. DA Contracting hired a subcontractor for the gas line work inside the house which consisted of taking the gas line from the old boiler and putting it to the new boiler in the basement of the house. Non-party Con Edison2 filed a Westchester County Road Permit Application to install a new gas service at 316 Westchester Avenue. Neither DA Contracting nor its subcontractor filed a permit to replace new gas lines to the premises or contacted Con Edison about replacing the gas lines. Pursuant to written contract, Con Edison retained subcontractor, defendant Posillico Civil, Inc. (“Posillico”), to do the gas work involving the subject roadway on Westchester Avenue. Neither Ocram nor AD Contracting contracted with Posillico for the work performed. Posillico never had any contact with the general contractor, plumber or owner of the premises where the gas service was being provided. Posillico’s work at 316 Westchester Avenue entailed installing a two-inch low pressure polyethylene gas service and three (3) outdoor meter bars for the premises, which required some excavation and trenching work performed on April 5, 2019 and April 8, 2019, including digging for the gas line coming from the main to the house traversing Westchester Avenue. Posillico’s job required bringing the gas line across the street, laying pipework in the street, threading it underneath the sidewalk, and connecting into the yellow gas valve located at 316 Westchester Avenue. Posillico did the pipework from the yellow gas valve to the Con Edison meters on the house. Posillico worked on the job site involving the roadway in proximity to 316 Westchester Avenue between April 5, 2019 to April 8, 2019. No other subcontractors were involved in the gas upgrade project. On April 5, 2019, Posillico began the subject work and dug a trench in the roadway. The work was not completed that day and to secure the job site before leaving, the excavated trench was covered with metal roadway plates, wooden wedges and pins were attached to secure it so that the plates did not move, and “cold patching” was put around the edge of the metal plates to create a ramp over which vehicles could travel. On April 8, 2019, Posillico continued its work installing the new gas line. At the end of the day, metal road plates were placed over the cut roadway, pins were installed to anchor the plates to the road, and wood wedges were placed where needed to ensure that the plates did not bounce when driven over. The plates were installed by Posillico only, no one else was involved. The work was inspected by an independent representative on behalf of Con Edison on both April 5, 2018 and April 8, 2019 without issue. DA Contracting did not perform and was not involved with the work in the roadway of the premises including the patch work. DA Contracting was not on the job or working on the jobsite at any time the metal roadway plates were set on the roadway of the premises. Ocram did not perform any of the work in the area of the subject plates involved in the lawsuits. Defendant DA Contracting argues, in support of its motion, that it owed no duty to the infant plaintiff for the condition of the roadway and therefore cannot be liable for her injury. DA contracting argues that its contract with Ocram did not include work on the gas lines or in the street, and that it did not perform any of the work performed on the street. Con Edison’s subcontractor, Posillico, performed the work in the street, and, as such, DA Contracting argues that it has no nexus to the work done by Posillico on Westchester Avenue where the infant plaintiff’s accident occurred. Lastly, DA Contracting argues that plaintiffs do not allege any facts that an exception under Espinal v. Melville Snow Contrs., 98 NY2d 136, 138-139 [2002], applies to this case. In support of its motion, defendant Ocram adopts the arguments set forth by its codefendant DA Contracting. Ocram also argues that it did not owe a duty to the infant plaintiff and therefore is not liable for her injuries. Ocram argues that it did not create, cause or have notice of the existence of the alleged dangerous condition in the public roadway that caused the accident at issue. In addition, Ocram argues that it did not have a contractual relationship with either Con Edison or Posillico with respect to the roadway or the gas project involving the roadway outside of 316 Westchester Avenue. Instead, it was Con Edison that filed the permit for the project and subcontracted with Posillico for the work performed. Ocram also argues that the infant plaintiff did not allege any facts that an exception under Espinal applies to this case, but even if she did, none of the Espinal exceptions are applicable to the instant case (id.). In opposition, plaintiffs argue that DA Contracting, as the general contractor for 316 Westchester Avenue, oversaw the entire renovation project, including the installation of new gas lines. Plaintiffs argue that DA Contracting hired subcontractor, non-party Albano Plumbing, to install new gas piping from Con Edison meters, and as such, the installation of the new gas lines in the roadway were done as part of the renovation project at the request of Ocram and/or DA Contracting. Plaintiffs argue that Espinal does not apply to the facts of this case, but that liability attaches to DA Contracting as the general contractor who was on site performing renovations as the agent for the homeowner, Ocram, who derived a special use (id.). Plaintiffs argue that it was due to the work in the street to install the new gas lines that resulted in the creation of a defective and dangerous condition, which caused the infant plaintiff to trip and fall in the middle of the street. As the gas lines were being worked on as part of the ongoing renovation project overseen, supervised and controlled by DA Contracting, which included upgraded gas lines, there was a duty to keep the area in reasonably safe condition and protect lawful pedestrians traversing the area. Because DA Contracting was on site at the property supervising and controlling the renovation project, it was in the best position to know of the defective and dangerous condition in the roadway. Plaintiffs argue that Ocram, as the homeowner, was deriving a special use from the work being performed on the roadway, as the roadway construction for gas line installation was part of the renovation project occurring at, and for the benefit of, the premises. Lastly, plaintiffs argue that Espinal does not apply to the facts of this case as there was no contract between DA Contracting and Posillico regarding the work in the street (id.). Plaintiffs argue that in the event Espinal does apply to the facts in this case, DA Contracting launched a harm that exacerbated a dangerous condition, as even though the condition was caused by Posillico, DA Contracting’s failure to maintain the patch as required by the street opening permit, launched a harm (id.). In addition, plaintiffs argue that DA Contracting stepped into the shoes of Posillico and took control of the area as the general contractor. In support of its motion, defendant Posillico argues that it did not owe a duty to the infant plaintiff and therefore is not liable for her injuries. Posillico argues that its contractual obligation to Con Edison will not rise to a level of tort liability in favor of a thirdparty such as the infant plaintiff, and that the exceptions to this rule do not apply to the facts of this case. Posillico argues that it neither created nor had notice of the alleged dangerous condition. Further, Posillico argues there is no evidence as to how long the condition of the roadway existed prior to the infant plaintiff’s accident. Posillico claims that plaintiffs’ amended verified complaint and verified bill of particulars only pleads the first Espinal exception, that it launched a force or instrument of harm, but argues that Posillico did not create or exacerbate the condition that allegedly caused the infant plaintiff to trip and fall. In addition, Posillico argues that the alleged defect is trivial as a matter of law, the doctrine of res ipsa loquitur is inapplicable, and all cross-claims should be dismissed. Posillico submits an affidavit of Jason Damm (“Damm”), General Superintendent for Posilico currently and in April, 2019. Damm swears that Posillico entered into a written contract with Consolidated Edison Company of New York, Inc. (“Con Edison”) in or around January 2017 to perform certain gas line work throughout Westchester County as part of the utility company’s ongoing operations. Dunn states that pursuant to its contract with Con Edison, Posillico was retained to install a two-inch low pressure polyethylene gas service and three outdoor meter bars for the property located at 316 Westchester Avenue. Damm asserts that Posillico performed some excavation and trenching work on April 5, 2019 and April 8, 2019 to complete the gas line hookup. Damm swears that prior to April 12, 2019, Posillico did not receive any complaints or concerns about the work it performed, including the metal plates, wood wedges, or cold patch placed on the roadway in front of 316 Westchester Avenue. Damm swears that, pursuant to Posillico’s job folder, Posillico’s work on April 5, 2019 and April 8, 2019 was inspected by an independent representative of or on behalf of Con Edison. Dunn swears that Posillico did not enter into a contract with either Ocram or DA Contracting for this work or to provide contractual indemnification. As to Posillico, plaintiffs argue that it, as a contractor undertaking work on a public highway, owed a non-delegable duty to the infant plaintiff to avoid creating dangerous conditions upon a public street. Plaintiffs argue that it was Posillico’s undertaking of inserting wedges and applying the cold patch on the roadway after it finished installation of gas lines that actually caused the dangerous and defective condition and created a danger. Plaintiffs claim that Posillico’s negligent application of cold patch deteriorated which allowed the wooden wedge to become exposed and become a tripping hazard to lawful pedestrians and the infant plaintiff. Plaintiffs argue that Espinal does not apply to the facts of this case, but that if it did, this case would fall into the exceptions: Posillico caused and created the alleged defective and dangerous condition in the public street in negligently covering the public roadway so as to launch a force or instrument of harm and Posillico displaced Con Edison’s duty to maintain the premises. Plaintiffs argue that Posillico had actual and constructive notice of the dangerous condition. Plaintiffs also argue that the defect was not trivial. Discussion A party seeking summary judgment has the burden of tendering evidentiary proof in admissible form to demonstrate the absence of material issues of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Where the moving party establishes prima facie entitlement to judgment as a matter of law, the burden then shifts to the opposing party to demonstrate that genuine issues of fact exist to preclude summary judgment (Alvarez v. Prospect Hosp., 68 NY2d 320, 324; Zuckerman v. City of New York, 49 NY2d 557, 562-563 [1980]). Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party (Miller v. Infohighway Communications Corp., 115 A.D.3d 713, 715 [2d Dept 2014]). Where the facts are undisputed, the court must decide whether one party owes a duty of care to another as a threshold matter (id.). It is undisputed that the infant plaintiff fell on the public roadway, not on the premises owned by Ocram. Ocram and DA Contracting established, and it is uncontested, that they neither performed the roadwork at issue outside the premises on Westchester Avenue nor maintained the metal plates and wooden wedges placed by Posillico, which allegedly caused the infant plaintiff to fall. Ocram and DA Contracting also established that no contract existed to which either was privy, to perform or maintain the roadwork at issue. Accordingly, Ocram and DA Contracting did not create, and cannot be charged with creating, the allegedly dangerous condition, or with otherwise launching a force or instrument of harm that caused the injured plaintiff’s accident, and thus, established their prima facie entitlement to summary judgment that neither owed a duty to the infant plaintiff (id.). In opposition, the plaintiffs failed to raise a triable issue of fact. Plaintiffs’ claim that Ocram and DA Contracting, as Ocram’s agent, were deriving a “special use” from the work that was being performed by Posillico in the roadway as it was being done to install a gas line required for the renovation project on the premises, and therefore Ocram and DA Contracting were deriving a benefit from the installation of the new gas line in the roadway. The principle of special use, a narrow exception to the general rule, imposes an obligation on the abutting landowner, where he puts part of a public way to a special use for his own benefit and the part used is subject to his control, to maintain the part so used in a reasonably safe condition to avoid injury to others (Minott v. City of New York, 230 AD2d 719, 720 [2d Dept 1996]). Special use cases generally involve the installation of an object in the street or on the sidewalk, such as an oil cap or a runway, for the benefit of a private landowner (id.). The common thread in each of these cases was an installation exclusively for the accommodation of the owner of the premises which he was bound to repair in consideration of private advantage (id.). The special use is a use different from the normal intended use of the public way, and thus, the special use exception is reserved for situations where a landowner whose property abuts a public street or sidewalk derives a special benefit from that property unrelated to the public use (id.). Here, Ocram and DA Contracting established their pima facie entitlement to judgment as a matter of law by demonstrating that they did not have exclusive access to, or the ability to exercise control over, the metal plates and wooden wedges on which the infant plaintiff allegedly tripped and fell (see Breland v. Bayridge Air Rights, Inc., 65 AD3d 559, 560 [2d Dept 2009]; see also Kaufman v. Silver, 90 NY2d 204, 207-208 [1997] ([i]mposition of the duty to repair or maintain a use located on adjacent property is necessarily premised, however, upon the existence of the abutting land occupier’s access to and ability to exercise control over the special use structure or installation…. it is the express or implied access to, and control of, the special use which gives rise to the duty). In opposition, plaintiffs have not tendered evidentiary proof, in admissible form, demonstrating the existence of material questions of fact. It is well-established that the breach of a contractor’s contractual obligation does not give rise to tort liability to others not in privity with the contractor, as the duty flows between only the parties to the contract (Santos v. Deanco Servs., Inc., 142 A.D.3d 137, 140 [2d Dept 2016], citing Espinal v. Melville Snow Contrs., 98 NY2d 136, 138-139 [2002]). However, the Court of Appeals has defined three narrow circumstances under which a contractor may be liable in negligence to a plaintiff with whom there is no contractual privity, for circumstances related to its contractual obligation. The first exception is where the contracting party, in failing to exercise reasonable care in the performance of contractual duties, launches a force or instrument of harm (see Espinal v. Melville Snow Contrs., 98 NY2d at 140). Uniformly, a launch of a force or instrument of harm has been interpreted as requiring that the contractor create or exacerbate the dangerous condition (Santos v. Deanco Servs., Inc., 142 A.D.3d 137, 141 [2d Dept 2016]). Launch is an action verb, requiring by definition evidence that the contractor affirmatively left the premises in a more dangerous condition than it was found (id. at 142). In the abstract, a party’s passive omissions might also conceivably create or exacerbate a dangerous condition just as active omissions (id.). In either instance, however, evidence must still be introduced linking the conduct to the creation or exacerbation of the condition (id.). Posillico has established its prima facie entitlement to judgment as a matter of law that it did not owe a duty to the infant plaintiff. Plaintiffs’ suggestion that Posillico’s omission of not returning to the site of the roadwork, may constitute a launch of a force or instrument of harm is specifically addressed and rejected by the Second Department in Santos v. Deanco Servs., Inc. (142 AD3d 137, 142 [2d Dept 2016]) (“To suggest, as does the plaintiff, that a mere omission by a contractor, without more evidence, may constitute a launch of a force or instrument of harm, decimates the meaning of the first Espinal exception. In other words, the first Espinal exception would be limitless, triggered upon any breached contract, and have the practical effect of entirely abrogating the general rule that contractors owe no duty to plaintiffs with whom they are not in contractual privity. Without requiring, in the context of the first Espinal exception, proof that the contractor’s conduct created or exacerbated the icy condition, any breach of contract could always be conflated with tort liability, even though breach of contract and tort liability are two separate concepts”). The evidence submitted establishes that when Posillico finished the roadwork on April 8, 2019, the roadway was properly covered with metal plates and wooden wedges and sealed with the cold patch, as established by the testimony as well as the inspection by or on behalf of Con Edison after the work was complete. While plaintiffs contend that Posillico’s actions of covering the open roadway caused and created the defective condition which caused the infant plaintiff to trip and fall, they provide no evidence in support other than conjecture that the cold patch deteriorated allowing the wooden wedge to become exposed. It is undisputed that Posillico did not return to the site of the accident from the time it finished work on April 8, 2019 before the infant plaintiff’s accident on April 12, 2019, and therefore could not have created a dangerous condition. While plaintiffs argue that Posillico had a nondelegable duty to avoid creating conditions dangerous to users of thoroughfare, plaintiffs have failed to establish that Posillico created a dangerous condition, and thus, have failed to raise a triable issue of fact (see Wright v. Tudor City Twelfth Unit, 276 NY 303, 307 [1938]). Since plaintiffs do not allege facts in their complaint or bill of particulars that would establish that any of the other exceptions to the general rule set forth in Espinal and its progeny applied in the present case, and plaintiffs concede in their papers that Espinal does not apply to the facts of the instant matter, the defendants were not required, in their motion, to negate the possible applicability of any of those exceptions (Miller v. Infohighway Communications Corp., 115 A.D.3d 713, 715 [2d Dept 2014]). The parties’ remaining contentions have been considered by the Court and are found to be without merit. Accordingly, it is hereby ORDERED that defendant DENNIS ADAMS CONTRACTING, INC.’s motion for summary judgment dismissing the complaint with prejudice together with any and all crossclaims asserted against it pursuant to CPLR 3212 is GRANTED; defendant OCRAM PROPERTIES LLC’s motion for summary judgment dismissing the complaint with prejudice together with any and all cross-claims against it pursuant to CPLR 3212 is GRANTED; and defendant POSILLICO CIVIL, INC.’s motion for summary judgment dismissing the complaint and any and all cross-claims asserted against it with prejudice pursuant to CPLR 3212 is GRANTED; and the complaint is dismissed in its entirety. Dated: January 14, 2022
