Miller v. City of New York

• Decision Date: 27 November 2012
• Citation: 100 A.D.3d 561,2012 N.Y. Slip Op. 08074,954 N.Y.S.2d 100
• Court: New York Supreme Court — Appellate Division
• Parties: Jodi MILLER, Plaintiff, v. The CITY OF NEW YORK, et al., Defendants, Consolidated Edison Company of New York, Inc., Defendant–Appellant, Safeway Construction Enterprises, Inc., Defendant–Respondent. Consolidated Edison Company of New York, Inc., Third–Party Plaintiff–Appellant, v. Safeway Construction Enterprises, Inc., Third–Party Defendant–Respondent, Nico Asphalt, Inc., Third–Party Defendant.

100 A.D.3d 561

954 N.Y.S.2d 100

2012 N.Y. Slip Op. 08074

Jodi MILLER, Plaintiff,

v.The CITY OF NEW YORK, et al., Defendants,Consolidated Edison Company of New York, Inc., Defendant–Appellant,Safeway Construction Enterprises, Inc., Defendant–Respondent.

Consolidated Edison Company of New York, Inc., Third–Party Plaintiff–Appellant,

v.Safeway Construction Enterprises, Inc., Third–Party Defendant–Respondent,Nico Asphalt, Inc., Third–Party Defendant.

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

Nov. 27, 2012.

Office of Richard W. Babinecz, New York (Stephen T. Brewi of counsel), for appellant.

Rafter and Associates PLLC, New York (Patrick B. McKeown of counsel), for respondent.

TOM, J.P., SAXE, RICHTER, ABDUS–SALAAM, FEINMAN, JJ.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered November 7, 2011, which, to the extent appealed from, granted third-party defendant Safeway Construction Enterprises, Inc.'s motion for summary judgment dismissing the complaint and the third-party complaint as against it, unanimously affirmed, without costs.

Pursuant to a contract with Con. Ed., Safeway performed excavation, conduit installation, and backfilling at an intersection where, a few days later, plaintiff allegedly was injured when the front wheel of her scooter fell into a trench in the roadway. The contract called for Safeway to leave the trench an inch and a half below grade; the Con. Ed. construction representative who oversaw Safeway's work testified that Safeway restored the trench to a depth of an inch and a half below grade. In opposition to this prima facie showing that Safeway did precisely what it was obligated to do under the contract, Con. Ed. failed to raise an issue of fact whether Safeway performed its contractual obligations negligently and created an unreasonable risk of harm to plaintiff, for whose injuries it could be held liable ( see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002];Agosto v. 30th Place Holding, LLC, 73 A.D.3d 492, 493, 901 N.Y.S.2d 593 [1st Dept.2010] ). We reject Con. Ed.'s contention that Safeway owed plaintiff a duty pursuant to general negligence principles ( see Espinal, 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485).

Contrary to Con. Ed.'s contention, no issue of fact exists whether Safeway breached its contractual duty to “protect and maintain” the 1 1/2-inch-deep trench for five days after completing its work by failing to place...