Gonzalez v. Povoski

• Court: New York Supreme Court — Appellate Division
• Citation: Gonzalez v. Povoski, 149 A.D.3d 1472, 53 N.Y.S.3d 423 (N.Y. App. Div. 2017)
• Decision Date: 28 April 2017
• Parties: Aiden GONZALEZ, by his Parent and Natural Guardian Elizabeth Snow, Individually, Plaintiffs–Respondents, v. Tammy POVOSKI, Defendant–Respondent, Village of Addison, Defendant–Appellant–Respondent, and Corning National Gas Corporation, Defendant–Respondent–Appellant. Corning Natural Gas Corporation, sued herein as Corning National Gas Corporation, Third–Party Plaintiff–Respondent–Appellant, v. Sullivan Trail Construction Co., Inc., Third–Party Defendant–Respondent–Appellant.

149 A.D.3d 1472

53 N.Y.S.3d 423

Aiden GONZALEZ, by his Parent and Natural Guardian Elizabeth Snow, Individually, Plaintiffs–Respondents,

v.Tammy POVOSKI, Defendant–Respondent,Village of Addison, Defendant–Appellant–Respondent,andCorning National Gas Corporation, Defendant–Respondent–Appellant.

Corning Natural Gas Corporation, sued herein as Corning National Gas Corporation, Third–Party Plaintiff–Respondent–Appellant,

v.Sullivan Trail Construction Co., Inc., Third–Party Defendant–Respondent–Appellant.

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

April 28, 2017.

Coughlin & Gerhart, L.L.P., Binghamton, Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Christine Gasser of Counsel), for Defendant–Appellant–Respondent.

Varvaro, Cotter & Bender, White Plains (Patricia A. Mooney of Counsel), for Defendant–Respondent–Appellant and Third–Party Plaintiff–Respondent–Appellant.

Cramer, Smith & Miller, P.C., Jamesville (Lauren M. Miller of Counsel), for Third–Party Defendant–Respondent–Appellant.

Christopher G. Johnson, Rochester, For Plaintiffs–Respondents.

PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM:

Plaintiffs commenced this action to recover damages for injuries sustained by the infant plaintiff upon being struck by a car in the vicinity of some excavation work being carried out by defendant Village of Addison (Village). To perform that work, the Village was using a mini-excavator borrowed from third-party defendant Sullivan Trail Construction Co., Inc. (Sullivan), which had contracted with defendant Corning Natural Gas Corporation, incorrectly sued as Corning National Gas Corporation (Corning), and which recently had been engaged in laying new natural gas lines for Corning in that vicinity. The infant plaintiff had crossed the street with an adult in order to watch the excavation work, and he was struck by the vehicle when he allegedly emerged from behind a pile of dirt placed partially in the street and attempted to cross back over to his own yard. Insofar as relevant herein, Corning moved for summary judgment dismissing the complaint and any cross claims against it on the ground that it had no involvement in the excavation work being carried out at the site and thus no duty to prevent the infant plaintiff's injury. Alternatively, Corning sought an order granting it contractual "indemnification and defense costs" from Sullivan pursuant to its third-party complaint against Sullivan. The Village cross-moved for summary judgment dismissing the complaint and all cross claims against it. Additionally, Sullivan cross-moved for partial summary judgment dismissing Corning's third-party complaint against it to the extent that Corning sought contractual indemnification and damages for breach of an agreement to procure insurance policies naming Corning as an additional insured.

Supreme Court denied the motion and cross motions.

With respect to its motion, we conclude that Corning is entitled to summary judgment dismissing the complaint and any cross claims against it, and we therefore modify the order accordingly. "In order to prevail on a negligence claim, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom ... In the absence of a duty, as a matter of law, there can be no liability" (Pasternack v. Laboratory Corp. of Am. Holdings, 27 N.Y.3d 817, 825, 37 N.Y.S.3d 750, 59 N.E.3d 485, rearg. denied 28 N.Y.3d 956, 38 N.Y.S.3d 525, 60 N.E.3d 421 [internal quotation marks omitted] ). Here, Corning had no duty to prevent the infant plaintiff's accident and thus cannot be held liable for its occurrence. In any event, Corning established its "prima facie entitlement to summary judgment by demonstrating that [it] had no involvement with the subject accident," and plaintiffs and the other defendants failed to raise a triable question of fact (Farrulla v. Happy Care Ambulette Inc., 125 A.D.3d 529, 530, 5 N.Y.S.3d 11 ; see

Pina v. Merolla, 34 A.D.3d 663, 663–664, 824 N.Y.S.2d 411 ; see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). In view of our determination with respect to Corning's entitlement to dismissal of the complaint and any cross claims against it, we do not address Corning's "al...