Gee v. City of New York
| Decision Date | 14 April 2003 |
| Citation | 758 N.Y.S.2d 157,304 A.D.2d 615 |
| Court | New York Supreme Court — Appellate Division |
| Parties | CHARLES GEE et al., Appellants,<BR>v.<BR>CITY OF NEW YORK et al., Respondents, and<BR>GRACE INDUSTRIES, INC., Appellant. |
Ordered that the order is affirmed, with one bill of costs.
The plaintiff Charles Gee was injured in a one-vehicle motorcycle accident on the northbound Gowanus Expressway, approximately 250 feet south of the Battery Tunnel toll plaza, allegedly due to an uneven and/or raised road surface between the extreme left lane and the lane to its right. The defendant Slattery Associates, Inc. (hereinafter Slattery), performed construction on the alleged accident site six years earlier, installing the portion of the roadway which allegedly caused the plaintiff's accident pursuant to a contract with New York State. The defendant City of New York issued permits for the project. The Supreme Court granted the separate motions of the City and Slattery for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, and these appeals ensued.
"A builder or contractor is justified in relying upon the plans and specifications which he has contracted to follow unless they are so apparently defective that an ordinary builder of ordinary prudence would be put upon notice that the work was dangerous and likely to cause injury" (Ryan v Feeney & Sheehan Bldg. Co., 239 NY 43, 46 [1924]; see also Horowitz v Marel Elec. Servs., 271 AD2d 572 [2000]; Morriseau v Rifenburg Constr., 223 AD2d 981 [1996]). Slattery demonstrated that the plans and specifications it followed were prepared by engineers of the New York State Department of Transportation (hereinafter the DOT). The DOT's signed daily inspection reports, along with its final acceptance letter of the project demonstrated that it approved Slattery's work. Slattery thereby established its entitlement to judgment as a matter of law (see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]).
In opposition, the plaintiffs did not raise a triable issue of fact as to whether Slattery failed to conform with the contract. In addition, the plaintiffs did not raise a triable issue of fact as to whether the plans and specifications themselves were defective. Unsubstantiated allegations and mere conclusions are inadequate to warrant the denial of summary judgment (see Zuckerman v City of New York, supra; Guzman v Lundy, 285 AD2d 626...
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