Martin v. Huang

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
• Citation: Martin v. Huang, 85 A.D.3d 1132, 926 N.Y.S.2d 622, 2011 N.Y. Slip Op. 5676 (N.Y. App. Div. 2011)
• Decision Date: 28 June 2011
• Parties: Michael MARTIN, respondent,v.Thomas HUANG, et al., defendants,Angelo Costa, et al., appellants.

85 A.D.3d 1132

926 N.Y.S.2d 622

2011 N.Y. Slip Op. 05676

Michael MARTIN, respondent,

v.Thomas HUANG, et al., defendants,Angelo Costa, et al., appellants.

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

June 28, 2011.

L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Keith J. Stevens of counsel), for appellants Angelo Costa and Costa Design.Keller, O'Reilly & Watson, P.C., Woodbury, N.Y. (Erin L. Deacy of counsel), for appellant G.I.C. Construction Company, Inc.Michael D. O'Leary, Bayside, N.Y. and Stuart A. Klein, New York, N.Y. (Christopher M. Slowik of counsel), for respondent (one brief filed).PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.

[926 N.Y.S.2d 624 , 85 A.D.3d 1132]

In an action, inter alia, to recover damages for injury to property, the defendants Angelo Costa and Costa Design appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Grays, J.), dated June 1, 2010, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, and the defendant G.I.C. Construction Company, Inc., separately appeals, as limited by its brief, from so much of the same order as denied its cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying the motion of the defendants Angelo Costa and Costa Design for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, and substituting therefor a provision granting the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable by the plaintiff to the defendants Angelo Costa and Costa Design, and one bill of costs payable by the defendant G.I.C. Construction Company, Inc., to the plaintiff.

The plaintiff commenced this action alleging, inter alia, that the retaining wall on his property collapsed due to the negligent planning and performance of excavation work conducted in connection with a construction project on the adjoining property owned by the defendant 63 Drive Corp. (hereinafter 63 Drive). The defendant New Main Street & 41st Road Construction (hereinafter New Main) was the general contractor for the construction project, which called for the construction of four one-family homes. The defendants Angelo Costa and Costa Design (hereinafter together the Costa defendants) entered into a contract with New Main to perform certain architectural services for the construction project. New Main hired the defendant G.I.C. Construction Company, Inc. (hereinafter GIC), as the excavating subcontractor for the project.

The Supreme Court did not err in denying GIC's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. A party who enters into a contract to render services may be said to have assumed a duty of care, and thus be potentially liable in tort, to third persons where, inter alia, “the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm” ( Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [internal quotation marks omitted]; see Mosca v. OCE Holding, Inc., 71 A.D.3d 1103, 1104, 898 N.Y.S.2d 204), where it completely displaces a landowner's duty to maintain property in a reasonably safe condition pursuant to a comprehensive and exclusive agreement, or where a plaintiff detrimentally relies on the continued performance of its contractual duties ( see Espinal v. Melville Snow Contrs., 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485). Here, GIC's submissions failed to eliminate all triable issues of fact as to whether, in allegedly failing to exercise reasonable care in the performance of its excavation work, it launched a force or instrument of harm or completely displaced the landowner's...