Farrugia v. 1440 Broadway Assocs.

• Decision Date: 18 January 2018
• Docket Number: 4901 ,Index 151857/12 ,590634/13
• Citation: 69 N.Y.S.3d 614,157 A.D.3d 565
• Parties: Anthony FARRUGIA, Plaintiff–Respondent, v. 1440 BROADWAY ASSOCIATES, et al., Defendants–Respondents–Appellants, Harbour Mechanical Corp., Defendant–Appellant–Respondent, The Martin Group, LLC, et al., Defendants. [And a Third–Party Action]
• Court: New York Supreme Court — Appellate Division

157 A.D.3d 565

69 N.Y.S.3d 614

Anthony FARRUGIA, Plaintiff–Respondent,

v. 1440 BROADWAY ASSOCIATES, et al., Defendants–Respondents–Appellants,Harbour Mechanical Corp., Defendant–Appellant–Respondent,The Martin Group, LLC, et al., Defendants.[And a Third–Party Action]

4901

Index 151857/12

590634/13

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

ENTERED: JANUARY 18, 2018

Westerman Sheehy Keenan Samaan & Aydelott, LLP, Uniondale (Joanne Emily Bell of counsel), for appellant-respondent.

London Fischer LLP, New York (Brian A. Kalman of counsel), for respondents-appellants.

Pollack, Pollack, Isaac & De Cicco, LLP, New York (Jillian Rosen of counsel), for respondent.

Manzanet–Daniels, J.P., Gische, Andrias, Kern, Singh, JJ.

Order, Supreme Court, New York County (Ellen M. Coin, J.), entered September 15, 2016, which, to the extent appealed from as limited by the briefs, denied defendant Harbour Mechanical Corp.'s motion for summary judgment dismissing the complaint and cross claims of defendants 1440 Broadway Associates, 1440 Broadway Owner, LLC and 1440 Broadway Mgt., LLC (collectively, the property owner), as against it, and denied the property owner's motion for summary judgment dismissing the complaint as against them, affirmed, without costs.

Plaintiff, an operating engineer, contends that while working in the pump room of the property owner's building, he was injured when he stepped into an exposed opening or hole in a metal plate¹ that caused him to fall. Harbour Mechanical was a contractor that the property owner retained to convert its building from a gas heating system to a Con Ed "clean steam station" (the conversion project). Plaintiff claims that Harbour, while working on the project, which included removal of an oil tank and other equipment, caused, created, exacerbated or "launche[d] a force or instrument of harm" when it removed the tank and left a large opening in the metal plate exposed ( Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ). Plaintiff contends that the opening was not dangerous until the oil tank was removed because the opening had been beneath the equipment (see Miller v. City of New York, 100 A.D.3d 561, 954 N.Y.S.2d 100 [1st Dept. 2012] ).

We find that Supreme Court correctly denied Harbour's motion for dismissal of the complaint and cross claims against it, as well as the property owner's motion for summary judgment dismissing the complaint. Defendants failed to demonstrate their entitlement to judgment as a matter of law (see Lopez v. New York Life Ins. Co., 90 A.D.3d 446, 934 N.Y.S.2d 136 [1st Dept. 2011] ). Moreover, there are issues of fact whether the exposed opening in the metal plate was open and obvious and not otherwise inherently dangerous (see generally Powers v. 31 E 31 LLC, 123 A.D.3d 421, 998 N.Y.S.2d 23 [1st Dept. 2014] ).

Plaintiff testified at his deposition that on the day of the accident he was working in the building's pump room, repairing a valve on equipment that was only three or four steps away from an exposed opening in a metal plate on the floor. While facing the equipment he was working on, plaintiff stepped back to reach for a tool. As he did so, he stepped into an exposed circular opening in the metal plate, causing him to fall backwards and strike his head on the concrete floor.

Plaintiff's claim against the property owner is that it failed to maintain its property in a reasonably safe condition because the opening was a dangerous condition of which it had notice, but failed to take remedial measures (see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 [1976] ). Plaintiff testified that when he first noticed the exposed opening, a few months before his accident, he took a picture of it with his cell phone and showed it to property owner's manager (Kohlbrecher). Kohlbrecher told plaintiff that he was busy at the moment, but that later he would take a look at the condition for himself.

Plaintiff's claim against Harbour is that when it removed the old fuel tank that was situated on the metal plate, Harbour launched a force or instrument of harm by creating a dangerous condition or making the condition less safe than it was before Harbour did its work. Harbour accedes that it removed a tank and other equipment during the conversion project and that the tank was to be serviced. It denies, however, that it made any structural changes to the metal plate or that the metal plate was inherently dangerous. Harbour maintains that the metal plate and any opening in it, once exposed, was open and obvious, particularly since plaintiff knew it was there and even took a photo of it.

Alternatively, Harbour argues it did not owe plaintiff, a noncontracting third party, a duty of care, and that even if it did expose an opening in the metal plate when it removed the oil tank, it cannot be held liable in negligence for merely doing the work it was contractually retained to do. Harbour denies that under the terms of its contract it had any contractual obligation to cover up, remediate or protect any opening it made when removing equipment from the pump room, and that the property owner and/or subcontractors were responsible for doing so. Harbour contends that it cannot be found to have caused or created a dangerous condition or have launched a force of harm because it did not make the exposed opening in the metal plate any less safe than it was before its removal of equipment from the pump room.

Although both defendants argue that the exposed opening in the metal plate was open, obvious, readily observable and known to plaintiff, a property owner has a nondelegable duty to maintain its premises in a reasonably safe condition, taking into account the forseeability of injury to others ( Basso, 40 N.Y.2d at 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 ). Moreover, although a defect or hazard may be discernable, this does not end the analysis, or compel a determination in favor of the property owner ( Westbrook v. WR Activities–Cabrera Mkts., 5 A.D.3d 69, 72, 773 N.Y.S.2d 38 [1st Dept. 2004] ). Plaintiff's awareness of a dangerous condition does not negate a duty to warn of the hazard, but only goes to the issue of comparative negligence ( Francis v. 107–145 W. 135th St. Assoc., Ltd. Partnership, 70 A.D.3d 599, 600, 895 N.Y.S.2d 400 [1st Dept. 2010] ). Given the exposed opening's proximity to equipment that required service, the circumstances of plaintiff's accident present an issue of fact of not only whether the condition was open and obvious, but also whether it was inherently dangerous (see Westbrook, 5 A.D.3d at 69, 71–73, 773 N.Y.S.2d 38 ; see Rubin v. Port Auth. of N.Y. & N.J., 49 A.D.3d 422, 422, 854 N.Y.S.2d 61 [1st Dept. 2008] ). Some hazards, although discernable, may be hazardous because of their nature and location (see Westbrook at 72, 773 N.Y.S.2d 38 ). Defendants did not establish that the exposed opening—given its location in the floor near other mechanical equipment in the pump room—was not only open and obvious, but that there was no duty to warn, and that the condition was not inherently dangerous (see Cupo v. Karfunkel, 1 A.D.3d 48, 51–52, 767 N.Y.S.2d 40 [2d Dept. 2003] ).

A contractual obligation, standing alone, will not give rise to tort liability in favor of a noncontracting third party ( Espinal 98 N.Y.2d at 138, 746 N.Y.S.2d 120, 773 N.E.2d 485 ] ). One exception to this broad rule is where the contracting party, in failing to exercise reasonable care in the performance of his duties, "launche[s] a force or instrument of harm" ( Espinal at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 ). We depart from the dissent in concluding that Harbour failed to make a prima facie showing that it did not owe plaintiff a duty of care and that it did not negligently cause, create or exacerbate a dangerous condition.

Even if Harbour's contract did not require that it cover, remediate, fill in or repair any of the floor openings resulting from its work, Harbour did not take even minimal corrective measures to protect the exposed opening in the floor after it removed the obsolete oil tank. Thus, while its removal of the tank was in fulfillment of its contractual obligation, a reasonable jury could find that Harbour's leaving an exposed and unprotected opening in the floor exposed, caused or created a dangerous condition even if previously the metal plate containing the opening was not unsafe. The dissent's view relies on cases where the defendant did not owe a duty of care because the condition the plaintiff complained of was precisely what was called for in the defendant's contract ( Fung v. Japan Airlines Co., Ltd., 9 N.Y.3d 351, 850 N.Y.S.2d 359, 880 N.E.2d 845 [2007] ; Peluso v. ERM, 63 A.D.3d 1025, 881 N.Y.S.2d 489 [2d Dept. 2009] ; Miller v. City of New York, 100 A.D.3d 561, 954 N.Y.S.2d 100 [1st Dept. 2012] ; Agosto v. 30th Place Holding, LLC, 73 A.D.3d 492, 492–493, 901 N.Y.S.2d 593 [1st Dept. 2010] ). We take no issue with Harbour's argument, and the dissent's view, that Harbour was contractually obligated to remove the tank and that it fulfilled its contract by doing so. Our view, however, is that while the metal plate and its opening was under the tank, it was not a hazard because the tank prevented, or at least made it difficult, for anyone to step into that area. However, once the tank was removed, and the opening below it exposed, the metal plate and its opening was no longer protected. There is a view of the facts that Harbour, by leaving the exposed opening without any kind of warning or minimal protection, created or caused an unsafe condition, or made the previously obscured opening in the metal plate "less safe" than before Harbour did its work (see Timmins v. Tishman Constr. Corp., 9 A.D.3d 62, 67, 777 N.Y.S.2d 458 [1st Dept. 2004], lv dismissed 4 N.Y.3d 739, 790 N.Y.S.2d 651, 824 N.E.2d 52 [2004] ; cf. Santos v. Daniello Carting Co., LLC, 148 A.D.3d 463, 464, 48 N.Y.S.3d 663 [1st Dept. 2...