Opinion
No. 306270/08.
2012-10-26
Juan VAZQUEZ, Plaintiff, v. 1107 FIFTH AVENUE CORPORATION, Midboro Management, Inc. and J. and J. Johnson Contracting, Inc., Defendants.
C. Michelle Clemmens, Lipsig, Shapey, Manus, Moverman, P.C., for Plaintiff. Jennifer Warycha, Baxter Smith Shapiro, P.C., for Defendant J and J Contracting, Inc.
C. Michelle Clemmens, Lipsig, Shapey, Manus, Moverman, P.C., for Plaintiff. Jennifer Warycha, Baxter Smith Shapiro, P.C., for Defendant J and J Contracting, Inc.
Ann Teresa McIntyre, Flynn, Gibbons & Downs, Esq, for Defendant Midboro.
SHARON A.M. AARONS, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of motion, as indicated below:
+--------------------------------------------------------------+ ¦PapersNumbered ¦ ¦ +---------------------------------------------------------+----¦ ¦Notice of Motion/Order to Show Cause and Exhibits Annexed¦1 ¦ +---------------------------------------------------------+----¦ ¦Affirmation in Opposition ¦2, 3¦ +---------------------------------------------------------+----¦ ¦Reply Affirmation ¦4 ¦ +--------------------------------------------------------------+
Upon the foregoing papers the Decision and Order on the motion are as follows:
Defendant J. and J. Johnson General Contracting Inc. (“JJ”) moved seeking an Order dismissing the complaint and all cross-claims pursuant to CPLR §§ 3212 and 3211. Defendant's motion is granted.
Plaintiff's claim is that on September 27, 2007, he slipped and fell at his workplace on an outdoor ramp that was carpeted. Plaintiff worked at1107 Fifth Avenue, New York, New York (“the premises”) as an elevator operator. JJ contracted with a resident at the property to do a “gut-renovation” of the resident's apartment. JJ constructed the temporary ramp with handrails over five steps, with the consent of the superintendent and the building management, in the rear of the building located at the premises, to move construction material while it renovated the apartment. Renovation begun in 2003 and ended in 2004. The property was managed by Midboro Management Inc. (“Midboro”). JJ was asked to leave the ramp in place after the renovation was completed for the convenience of the premises. The minutes of the March 31, 2004 meeting of the Board of Directors of the 1107 Fifth Avenue Corporation (“the Board”) show that they approved the continued use of the ramp that JJ built. The minutes of the June 9, 2009 Board meeting show that they discussed whether to keep or replace the ramp. The September 22, 2004 minutes show that the Board decided to keep the ramp and not pursue a replacement.
Stanley Jawor, the resident manager/ superintendent of the building, testified that after JJ completed its renovation, it sought to dismantle the ramp, but was asked to let it remain as reflected in an unsigned letter to JJ that was written by Karen Rowlands of Midboro. The letter to JJ, dated April 14, 2004, requested JJ's “permission to keep this ramp and agreed to take full responsibly (sic) for the ramp from this point on.” Michael Wolfe, the President of Midboro testified that it was the understanding of Midboro that JJ would have no further role regarding the ramp after the renovation. Mr. Jawor testified that after the premises took over the ramp, a carpet was put on it because it was slippery when wet, and after plaintiff's accident new plywood was put on the ramp.
JJ demonstrated its entitlement to judgment as a matter of law by establishing that it owed no duty of care to the plaintiff. It is well settled that a legal duty must be owed before liability can be found. Holdampf v. A.C. & S., Inc. (In re New York City Asbestos Litig.), 5 NY3d 486, 840 N.E.2d 115, 806 N.Y.S.2d 146 (2005); Palsgraf v. Long Island R. Co., 248 N.Y. 339, 342, 162 N.E. 99, 59 A.L.R. 1253 (1928). The scope of the duty owed is usually a legal question for the judge, unlike foreseeability and causation, which are issues generally left for the jury. Palka v. Servicemaster Management Servs. Corp., 83 N.Y.2d 579, 585, 634 N.E.2d 189, 611 N.Y .S.2d 817 (1994). Generally, tort liability is not imposed on a party to a contract by a noncontracting third party, except
“(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, ‘launche[s] a force or instrument of harm’ [quoting Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 168, 159 N.E. 896(1928) ]; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties [citing Eaves Brooks Costume Co. v. Y.B .H. Realty Corp., 76 N.Y.2d 220, 226, 556 N.E.2d 1093, 557 N.Y.S.2d 286 (1990) ] and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely [citing Palka v. Servicemaster Management Servs. Corp., 83 N.Y.2d 579, 589, 634 N.E.2d 189, 611 N.Y.S.2d 817 (1994) ]. [citing Espinal v. Melville Snow Contrs., Inc., 98 N.Y.2d 136, 140, 773 N.E.2d 485, 746 N.Y.S.2d 120 (2002); see also Church v. Callanan Indus., 99 N.Y.2d 104, 112–113, 782 N.E.2d 50, 752 N.Y.S.2d 254 (2002) ].” Stiver v. Good & Fair Carting & Moving, Inc., 9 NY3d 253, 257, 878 N.E.2d 1001, 848 N.Y.S.2d 585 (2007).
Not all accidents fit into the circumstances cited above. Id. A contractor does not assume a duty of care where the undertaking in the contract is limited and is “not a comprehensive and exclusive maintenance obligation intended to displace the landowner's duty to safely maintain the property.” Lehman v. North Greenwich Landscaping, LLC, 65 AD3d 1291, 1292, 887 N.Y.S.2d 136 (2d Dept.2009), aff'd, 16 NY3d 747, 942 N.E.2d 1046, 917 N.Y .S.2d 621 (2011).
Here, JJ, a contractor, did not manage the premises at any time. JJ built the temporary ramp for its own use for moving construction material which it intended to dismantle at the end of the renovation, but was asked by Midboro, in writing, to leave the ramp in place in 2004 with the understanding that Midboro would take full responsibility for the ramp. As such, it cannot be said that plaintiff detrimentally relied on JJ's continued performance of the contract. See Church, 99 N.Y.2d at 111. Even if the Court were to disregard the April 14, 2004 letter because it does not bear Ms. Rowland's signature, there is substantial evidence that Midboro and the Board took control of the ramp. Mr. Jawor and Mr. Wolf both testified that JJ was asked to leave the ramp and the premises took over control and maintenance of the ramp. The minutes of the Board meetings show that the Board of Directors discussed replacing the ramp, but did not because it was in good condition. Also, the superintendent placed a rug on the ramp confirming that they had taken control of the ramp and maintained it.
The evidence does not support a finding that JJ created an unreasonable risk of harm to others, or increases that risk by constructing the ramp during the renovation of the apartment for the limited purpose of moving construction material. Plaintiff was not injured while the ramp was being used for the purpose it was built. Rather, the evidence is that he was injured some four years after JJ sought to dismantle the ramp, but was asked to leave it for the use of the premises. JJ thereafter did not exercise any control or maintenance of the ramp. As such, the facts of this case do not establish liability on JJ's part.
In opposition, plaintiff submitted the affidavit of Scott Silberman, a Professional Engineer, who opined that the ramp violated various administrative codes. Plaintiff failed to raise a triable issue of fact as those codes are not applicable to the facts of this case as JJ constructed the ramp for the limited purpose of moving construction material.
Accordingly, J. and J. Johnson General Contracting Inc.'s motion for summary judgment is granted. It is hereby
ORDERED, that the claims in the complaint and any and all cross-complaint against J. and J. Johnson General Contracting Inc. are dismissed.