Fernandez v. 707 Inc.

• Decision Date: 16 June 2011
• Citation: 85 A.D.3d 539,926 N.Y.S.2d 408,2011 N.Y. Slip Op. 05180
• Parties: Jose FERNANDEZ, Plaintiff–Appellant–Respondent,v.707, INC., Defendant–Respondent,Biltmore Contracting, Inc., Defendant–Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 539

926 N.Y.S.2d 408

2011 N.Y. Slip Op. 05180

Jose FERNANDEZ, Plaintiff–Appellant–Respondent,

v.707, INC., Defendant–Respondent,Biltmore Contracting, Inc., Defendant–Respondent–Appellant.

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

June 16, 2011.

Rosenberg, Minc, Falkoff & Wolff, LLP, New York (Robert H. Wolff of counsel), for appellant-respondent.Ahmuty, Demers & McManus, Albertson (Brendan T. Fitzpatrick of counsel), for respondent-appellant.Kaufman Borgeest & Ryan LLP, New York (Dennis J. Dozis and Jacqueline Mandell of counsel), for respondent.ANDRIAS, J.P., FRIEDMAN, CATTERSON, MOSKOWITZ, ROMÁN, JJ.

Order, Supreme Court, Bronx County (Barry Salman, J.), entered July 22, 2010, which granted defendant 707, Inc.'s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs. Order, same court and Justice, entered July 22, 2010, which denied defendant Biltmore Contracting, Inc.'s motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed enter judgment in Biltmore's favor dismissing the complaint as against it.

707, Inc. (707) obtained a “Builder's Pavement Plan” permit from the New York City Department of Transportation, dated May 3, 2006, to rebuild the sidewalks abutting its Bruckner Boulevard property. By its agent Hagivah, 707 hired Biltmore to perform the work, instructing Biltmore to leave specified sections of the sidewalk open to accommodate tree wells. 707 also obtained a tree planting permit from the New York City Department of Parks & Recreation and hired another company to plant the trees.

Biltmore commenced work on or about August 24, 2006 and completed it on or about September 14, 2006. On October 15, 2006, plaintiff allegedly was injured when he stepped into a tree well that was not level with the sidewalk. At the time, the City had yet to sign off on the sidewalk, and no trees had been planted. Subsequently, on October 30, 2006, 707's project engineer certified that the sidewalks had been constructed in accordance with the specifications set forth in the Rules and Regulations of the Department of Highways.

Although Administrative Code of the City of New York § 7–210 (eff. September 14, 2003) imposes tort liability on property owners who fail to maintain abutting city-owned sidewalks in a reasonably safe condition, 707 cannot be held liable for plaintiff's injuries by virtue of its status as an abutting landowner because a property owner's responsibility for a sidewalk does not extend to tree wells ( see Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 521, 860 N.Y.S.2d 429, 890 N.E.2d 191 [2008]; Grier v. 35–63 Realty, Inc., 70 A.D.3d 772, 895 N.Y.S.2d 149 [2010] ). The motion court correctly rejected plaintiff's argument that the area where he fell was not a tree well because at the time of the accident the City had yet to “sign off” on the project and no tree had been planted. These considerations do not bear on the character of the area, which the court described as “a square or rectangular dirt area surrounded by cement designed to accommodate one or more trees.” Accordingly, 707 cannot be held liable for plaintiff's injuries unless it affirmatively created the dangerous condition, negligently made repairs to the area, or caused the dangerous condition to occur through a special use of the area ( see Vucetovic, 10 N.Y.3d at 520, 860 N.Y.S.2d 429, 890 N.E.2d 191).

A property owner ordinarily is not responsible for the negligence of an independent contractor retained to work upon its property, unless the work is inherently dangerous, or the owner interferes with and assumes control over the work ( see Kleeman v. Rheingold, 81 N.Y.2d 270, 273, 598 N.Y.S.2d 149, 614 N.E.2d 712 [1993]; Rosenberg v. Equitable Life Assur. Socy. of U.S., 79 N.Y.2d 663, 668, 584 N.Y.S.2d 765, 595 N.E.2d 840 [1992]; Laecca v. New York Univ., 7 A.D.3d 415, 777 N.Y.S.2d 433 [2004], lv. denied 3 N.Y.3d 608, 785 N.Y.S.2d 25, 818 N.E.2d 667 [2004] ). On its motion for summary judgment, 707 submitted proof that it hired Biltmore to build the sidewalk and tree well. It also submitted the deposition transcript of Biltmore's president who testified that a representative of the owner gave him a layout showing where to leave the tree wells and that the president's uncle was present on a daily basis and supervised the work.

In opposition, plaintiff failed to raise a triable issue of fact whether any exception to the “independent contractor rule” applied ( see Campbell v. HEI Hospitality, LLC, 72 A.D.3d 860, 861, 898 N.Y.S.2d 864 [2010] ). A senior project manager for Hagivah testified at his deposition that he explained to Biltmore where to place the tree...