Gadani v. Dormitory Authority of the State of New York, 501692.

• Citation: 2007 NY Slip Op 06601,43 A.D.3d 1218,841 N.Y.S.2d 709
• Decision Date: 13 September 2007
• Docket Number: 501692.
• Parties: JOHN GADANI et al., Plaintiffs, v. DORMITORY AUTHORITY OF THE STATE OF NEW YORK et al., Respondents, and DEBRINO CAULKING ASSOCIATES, INC., Appellant, et al., Defendant. (And a Third-Party Action.)
• Court: New York Supreme Court Appellate Division

43 A.D.3d 1218

841 N.Y.S.2d 709

2007 NY Slip Op 06601

JOHN GADANI et al., Plaintiffs, v. DORMITORY AUTHORITY OF THE STATE OF NEW YORK et al., Respondents, and DEBRINO CAULKING ASSOCIATES, INC., Appellant, et al., Defendant. (And a Third-Party Action.)

501692.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided September 13, 2007.

Appeal from an order of the Supreme Court (Teresi, J.), entered July 19, 2006 in Albany County, which, inter alia, granted certain defendants' motions for summary judgment dismissing the amended complaint against them.

Spain, J.

The instant personal injury action arises out of construction work being done on Court of Appeals Hall in the City of Albany. The owner of the building, defendant Dormitory Authority of the State of New York (hereinafter DASNY), contracted with defendant BBL Construction Services, LLC to serve as the project manager. To perform the actual construction work, DASNY contracted with "prime contractors" that were responsible for individual aspects of the project. Defendant DeBrino Caulking Associates, Inc. was hired by DASNY as the prime contractor for masonry, and DeBrino subcontracted with third-party defendant, Marinello Construction Company, which employed plaintiff John Gadani (hereinafter plaintiff). Additionally, DASNY contracted with defendant August Bohl Contracting Company (hereinafter Bohl) to provide snow removal services at the job site. BBL subcontracted with defendant Landon & Rian Enterprises, Inc. (hereinafter L & R) to provide safety inspection services.

As part of the construction site, a parking lot adjacent to Court of Appeals Hall was fenced in and identified as the "staging area" where contractors would work and store materials. On January 7, 2003, plaintiff drove a Gradall forklift through the main portion of the staging area, which was covered with snow and ice, to the work area used by Marinello. Plaintiff exited the cab of the forklift, took two steps towards a mixing shanty, then fell and fractured his ankle, the repair of which required surgery and the installation of a permanent metal plate and screws.

Plaintiff and his wife, derivatively, commenced this action against DASNY, BBL, Bohl, L & R and DeBrino alleging negligence and Labor Law violations, and DASNY, BBL and Bohl brought a third-party complaint against Marinello. Additionally, DeBrino brought cross claims against DASNY, BBL, Bohl and L & R, and DASNY, BBL and Bohl, who jointly answered the complaint, cross-claimed against DeBrino and L & R. In May 2006, L & R moved for summary judgment dismissing the amended complaint and all cross claims against it. Shortly thereafter, DASNY, BBL and Bohl also moved for summary judgment dismissing all claims against them. Supreme Court granted the summary judgment motions in a decision entered in July 2006 dismissing the amended complaint and cross claims against L & R, DASNY, BBL and Bohl. DeBrino appeals so much of the court's order as granted summary judgment to DASNY, BBL and Bohl.^*

Summary judgment is a drastic remedy and should only be granted when no material facts are sufficiently disputed as to warrant a trial (see Matter of La Bier v La Bier, 291 AD2d 730, 732 [2002], lv dismissed 98 NY2d 671 [2002]). The totality of the evidence should be viewed in a light most favorable to the nonmoving party and we should accord it the benefit of every reasonable inference (see Tenkate v Tops Mkts., LLC, 38 AD3d 987, 989 [2007]). The court's function on a motion for summary judgment is issue finding not issue determination and, where a genuine issue of fact exists, summary judgment must be denied (see id.; Pronti v Cicora, 35 AD3d 1007, 1007 [2006]).

Initially, we find that Bohl was properly granted summary judgment on the basis that it owed no duty to plaintiff. Plaintiffs' claims against Bohl are premised on Bohl's alleged breach of its contract for snow removal with DASNY and, "ordinarily, breach of a contractual obligation will not be sufficient in and of itself to impose tort liability to noncontracting third parties" such as plaintiffs (Church v Callanan Indus., 99 NY2d 104, 111 [2002]). A contractual obligation, even if breached, will only give rise to a duty to noncontracting third parties in three, limited situations: "(1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, `launche[s] a force or instrument of harm' (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely" (Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002] [citations omitted]; see Karac v City of Elmira, 14 AD3d 842, 844 [2005]).

Here, only the first ground for liability is asserted. Thus, the dispositive issue is whether a question of fact exists as to whether Bohl's alleged conduct "ha[d] advanced to such a point as to have launched a force or instrument of harm" (Moch Co. v Rensselaer Water Co., 247 NY 160, 168 [1928]), i.e., whether Bohl engaged in affirmative conduct which made the staging area "less safe ... than it was before the [snow removal] began" (Church v Callanan Indus., supra at 112; Wyant v Professional Furnishing & Equip., Inc., 31 AD3d 952, 954 [2006]).

DeBrino contends that Bohl's failure to promptly remove snow led to the icy condition which caused plaintiff's fall because heavy vehicular and pedestrian traffic in the staging area caused the snow to pack down, leaving a hard, icy surface which Bohl allegedly failed to clear. At best, these allegations assert that it was Bohl's inactivity in failing to plow the area before the surface became packed down and then failing to clear the hard-packed snow to the pavement that contributed to plaintiff's fall. There is no assertion that Bohl's snow removal efforts rendered the area "less safe" than it would have been had...