Baird v. Gormley

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PETERS
• Citation: Baird v. Gormley, 2014 NY Slip Op 2365, 116 A.D.3d 1121, 983 N.Y.S.2d 662 (N.Y. App. Div. 2014)
• Decision Date: 03 April 2014
• Parties: Thomas C. BAIRD IV, Appellant, v. James M. GORMLEY et al., Defendants, and Bellamy & Sons Construction Company, Inc., Respondent.

116 A.D.3d 1121

983 N.Y.S.2d 662

2014 N.Y. Slip Op. 02365

Thomas C. BAIRD IV, Appellant,

v. James M. GORMLEY et al., Defendants,andBellamy & Sons Construction Company, Inc., Respondent.

Supreme Court, Appellate Division, Third Department, New York.

April 3, 2014.

Murphy, Burns, Barber & Murphy, LLP, Albany (James J. Burns of counsel), for appellant.

Shantz & Belkin, Latham (Gilah Moses of counsel), for respondent.

Before: PETERS, P.J., STEIN, McCARTHY and ROSE, JJ.

PETERS, P.J.

Appeal from an order of the Supreme Court (McNamara, J.), entered September 13, 2012 in Albany County, which granted a motion by defendant Bellamy & Sons Construction Company, Inc. for summary judgment dismissing the complaint against it.

At approximately 8:00 a.m. on July 3, 2007, plaintiff was operating his motor vehicle on Boght Road in the Town of Colonie, Albany County when his right front tire passed over a manhole that was not properly covered, causing him to lose control of his vehicle and hit a tree. The accident site was adjacent to property owned by defendants James M. Gormley and Maria Gormley, who had retained defendants American Design & Contracting, LLC and Hometown Modular Builders, LLC to construct a modular home thereupon. Hometown contracted with defendant Bellamy & Sons Construction Company, Inc. to connect the Gormleys' property to the public sewer line maintained by defendant Town of Colonie.

Theorizing that one of the aforementioned defendants had left the manhole open after either inspecting it or doing work related to the construction of the Gormleys' new home, plaintiff commenced this negligence action.¹ Following joinder of issue, defendants made various motions for summary judgment dismissing the complaint. While finding that all moving defendants made a prima facie showing of entitlement to summary judgment and that plaintiff failed to submit evidentiary proof sufficient to raise a question of fact, Supreme Court held such motions in abeyance pending further disclosure. Thereafter, upon renewal of the motions, Supreme Court granted summary judgment to Hometown and American and, following Bellamy's response to plaintiff's further discovery demands, granted Bellamy's motion in a separate order. Plaintiff appeals from the order granting summary judgment in favor of Bellamy.

The gravamen of plaintiff's complaint against Bellamy is that it created a dangerous condition around the manhole by removing the cover or leaving it ajar as part of its work in connecting the Gormleys' property to the public sewer line. “A contractor may be liable for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street or sidewalk” ( Losito v. City of New York, 38 A.D.3d 854, 855, 833 N.Y.S.2d 564 [2007];see Brown v. Welsbach Corp., 301 N.Y. 202, 205, 93 N.E.2d 640 [1950];Laymon v. Allen, 81 A.D.3d 1298, 1299, 916 N.Y.S.2d 553 [2011] ). As the proponent of the motion for summary judgment, it was incumbent upon Bellamy to “ ‘make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact’ ” ( Smalls v. ALJ Indus., Inc., 10 N.Y.3d 733, 735, 853 N.Y.S.2d 526, 883 N.E.2d 350 [2008], quoting Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986];see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).

In support of the motion, Bellamy submitted the affidavit and examination before trial testimony of its comptroller, the deposition testimony of its co-vice-president, its project manager and the Town's senior civil engineering technician, as well as significant documentation. The evidence presented established that Bellamy did not commence work on the Gormley project until August 24, 2007, well after plaintiff's July 3, 2007 accident, and that none of its employees was directed to remove the manhole cover or was otherwise present at the site prior to this time. Rather, Bellamy's co-vice-president stated that he first removed the manhole cover to look inside during a site visit with the excavator in August 2007. In light of this evidence and absent proof that Bellamy exercised control over the subject manhole around the time of plaintiff's accident, we conclude that Bellamy met its initial burden of establishing that it was not responsible for the dangerous condition of the manhole ( see Semzock v. State of New York, 97 A.D.3d 1012, 1013, 949 N.Y.S.2d 236 [2012] ).

The burden then shifted to plaintiff “to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” ( Alvarez v. Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). The absence of direct evidence that Bellamy created the condition is not necessarily fatal to plaintiff's claim, as he may “show[ ] facts and conditions from which the negligence of [Bellamy] and the causation of the accident by that negligence may be reasonably inferred” ( Schneider v. Kings Hwy. Hosp. Ctr., 67 N.Y.2d 743, 744, 500 N.Y.S.2d 95, 490 N.E.2d 1221 [1986] [internal quotation marks and citation omitted]; accord Flahive v. Union Coll., 99 A.D.3d 1151, 1153, 952 N.Y.S.2d 821 [2013];see Seelinger v. Town of Middletown, 79 A.D.3d 1227, 1229, 913 N.Y.S.2d 376 [2010] ). The proof “must be sufficient to permit a finding based on logical inferences from the record and not upon speculationalone” ( Bloomer v. Empire...