Spielmann v. 170 Broadway NYC LP, Index No. 152835/2015
| Citation | 125 N.Y.S.3d 837 (Table),67 Misc.3d 1205 (A) |
| Decision Date | 08 November 2019 |
| Docket Number | Index No. 152835/2015 |
| Parties | Peter James SPIELMANN and Judith Hansen, Plaintiffs v. 170 BROADWAY NYC LP, McGowan Builders Inc., Construction Realty Safety Group Inc., DeMartino Construction Co., Inc., and Colgate Enterprise Corp., Defendants |
| Court | United States State Supreme Court (New York) |
Russell Ragland Esq. and Michael Ronemus Esq., Ronemus & Vilinsky LLP, 112 Madison Avene, New York, NY 10016, For Plaintiffs.
Josefina Belmonte Esq. and Doreen Correia Esq., Correia, King, McGinnis & Liferiedge, 1 Battery Park Plaza, New York, NY 10004, For Defendant 170 Broadway NYC LP.
Joanne Emily Bell Esq., Westermann Sheehy Keenan Samaan & Aydelott, LLP, 90 Merrick Avenue, East Meadow, NY 11554, For Defendant Construction Realty Safety Group Inc., Amara S. Faulkner Esq., Law Offices of Erin M. McGinnis, PLLC, 307 West 38th Street, New York, NY 10018, For Defendant McGowan Builders, Inc.
Mary Ellen O'Brien Esq., Pillinger Miller Tarrallo LLP, 555 Taxter Road, Elmsford, NY 10523, For Defendant DeMartino Construction Co., Inc.
Eileen Farrell Esq., 801 2nd Avenue, New York, NY 10017, For Defendant Colgate Enterprise Corp.
Plaintiffs sue to recover damages for personal injuries and lost services sustained April 24, 2014, when plaintiff Spielmann fell after being struck by a door in a plywood fence that opened from a construction site outward onto the sidewalk where he was walking along Maiden Lane in New York County. The fence or barrier was in front of premises undergoing renovation at the corner of Broadway, owned by defendant 170 Broadway NYC LP. Defendants McGowan Builders Inc. and DeMartino Construction Co., Inc., were general contractors for different areas of the work. Defendant Colgate Enterprise Corp., a subcontractor, installed the door.
Plaintiffs move for partial summary judgment on the liability of 170 Broadway NYC and Colgate Enterprise, on the conditional liability of McGowan Builders or DeMartino Construction, and dismissing all affirmative defenses alleging Spielmann's fault. C.P.L.R. § 3212(b) and (e). 170 Broadway NYC separately moves for partial summary judgment on cross-claims for indemnification against McGowan Builders, DeMartino Construction, and Colgate Enterprise. Id. Defendant Construction Realty Safety Group Inc. (CRSG), another subcontractor for the renovation, cross-moves for summary judgment dismissing all claims and cross-claims against CRSG. For the reasons explained below, the court grants plaintiffs' and 170 Broadway NYC's motions in part, but otherwise denies the motions, and denies CRSG's cross-motion.
Plaintiffs claim that 170 Broadway NYC, Colgate Enterprise, and the general contractor that hired Colgate Enterprise, whether McGowan Builders or DeMartino Construction, are liable and that any affirmative defenses of Spielmann's comparative negligence, assumption of risk, or other culpable conduct lack merit as a matter of law. 170 Broadway NYC, McGowan Builders, DeMartino Construction, and Colgate Enterprise maintain that plaintiffs fail demonstrate the negligence of 170 Broadway NYC and Colgate Enterprise or the liability of the general contractor that hired independent contractor Colgate Enterprise. At oral argument, the parties agreed that plaintiffs rely on the installation of the door opening outward without recessing it as evidence of negligence and not on the failure to post a flagman. Defendants maintain that plaintiffs' documentary evidence supporting defendants' negligence is inadmissible and that plaintiffs fail to demonstrate the lack of merit to the affirmative defenses through Spielmann's deposition testimony.
As the owner of the premises abutting the sidewalk on which Spielmann was walking, 170 Broadway NYC is liable a for violating New York City Administrative Code § 7-210(a), which requires an owner of real property abutting a sidewalk "to maintain such sidewalk in a reasonably safe condition." Contrary to 170 Broadway NYC's contentions, Administrative Code § 7-210(a) is not limited to defects in the sidewalk itself. Doyley v. Steiner , 107 A.D.3d 517, 520 (1st Dep't 2013) ; Cook v. Consolidated Edison Co. of NY, Inc. , 51 A.D.3d 447, 448 (1st Dep't 2008). See N.Y.C. Admin. Code § 7-210(b) ; Vucetovic v. Epsom Downs, Inc. , 10 N.Y.3d 517, 522 (1st Dep't 2008). Interference with pedestrian traffic on a sidewalk from construction activity is a basis for liability under that statutory provision. Doyley v. Steiner , 107 A.D.3d at 520 ; Gabriele v. Edgewater Park Owners Coop. Corp., Inc. , 67 A.D.3d 484, 485 (1st Dep't 2009) ; Cook v. Consolidated Edison Co. of NY, Inc. , 51 A.D.3d at 448. Installation of the door opening outward onto a pedestrian sidewalk without being recessed constituted negligence. See Sicilano v. Henry Modell & Co., Inc. , 85 A.D.3d 534, 536-37 (1st Dep't 2011) ; Hunter v. Riverview Towers , 5 A.D.3d 249, 250 (1st Dep't 2004).
Since 170 Broadway NYC's statutory duty to maintain the sidewalk was non-delegable, Vullo v. Hillman Hous. Corp. , 173 A.D.3d 600, 600 (1st Dep't 2019) ; LaRosa v. Corner Locations, II, L.P. , 169 A.D.3d 512, 513 (1st Dep't 2019) ; Kellogg v. All Sts. Hous. Dev. Fund Co., Inc. , 146 A.D.3d 615, 616 (1st Dep't 2017) ; Wahl v. JCNYC, LLC , 133 A.D.3d 552, 552 (1st Dep't 2015), the installation of the door by a general contractor or subcontractor does not eliminate 170 Broadway NYC's liability for the negligent work. Vullo v. Hillman Hous. Corp. , 173 A.D.3d at 600. See Cook v. Consolidated Edison Co. of NY, Inc. , 51 A.D.3d at 448. Any claim that 170 Broadway NYC did not request or authorize the work only raises factual issues regarding the further liability of whoever did. Gabriele v. Edgewater Park Owners Coop. Corp., Inc. , 67 A.D.3d at 485. 170 Broadway NYC's representative at the construction site admitted that he passed by the door that struck Spielmann many times after it was modified to open outward and before Spielmann's injury, giving 170 Broadway NYC constructive if not actual notice of the unsafe sidewalk condition.
170 Broadway NYC maintains that the New York City Department of Buildings (DOB) notices of violations, the site safety manager's log, a CRSG site safety incident report, and a police report on which plaintiffs rely are inadmissible. Spielmann's deposition testimony regarding how he sustained his injury and defendants' admissions that DOB issued a notice of violation regarding the construction of the door swinging outward support plaintiffs' motion on defendants' negligence without resorting to other documentary evidence.
Whether Spielmann accurately described the door that struck him as wood, rather than metal, or as green, rather than gray, is immaterial. His description well may have been inaccurate, since he did not observe the door before it struck him and it rendered him unconscious. All that is material is undisputed: the door that struck him opened outward onto the sidewalk; Colgate Enterprise admits that it modified at least one door to open outward; and no one else actually performed the work modifying any doors in the perimeter fence. Moreover, although the evidence establishes that Colgate Enterprise modified a metal door to open outward, no evidence establishes that it did not modify any other doors, including a green plywood door.
DOB did not issue its notices of violations to 170 Broadway NYC in any event, but issued them to McGowan Builders, citing Administrative Code § 28-105.12.2, which requires work to conform to filed construction documents, and New York City Building Code § 3301.2 (formerly N.Y.C. Admin. Code § 27-1009 ), which requires a contractor to implement safety measures and safeguard persons affected by its operations. Whiting-Turner Contr. Co. v. Environmental Control Bd. of the City of NY , 170 A.D.3d 585, 585 (1st Dep't 2019) ; Auliano v. 145 E. 15th St. Tenants Corp. , 129 A.D.3d 469, 470 (1st Dep't 2015) ; Trustees of Columbia Univ. v. City of New York , 110 A.D.3d 467, 467 (1st Dep't 2013). Plaintiffs do not seek summary judgment against McGowan Builders based on the violations.
The liability of nonowner Colgate Enterprise for an unsafe sidewalk condition depends on whether Colgate Enterprise created the unsafe condition or made special use of the sidewalk. Kellogg v. All Sts. Hous. Dev. Fund Co., Inc. , 146 A.D.3d 615, 617 (1st Dep't 2017) ; O'Brien v. Prestige Bay Plaza Dev. Corp. , 103 A.D.3d 428, 429 (1st Dep't 2013) ; Abramson v. Eden Farm, Inc. , 70 A.D.3d 514, 514 (1st Dep't 2010). The parties do not dispute that Colgate Enterprise installed any doors that opened outward without recessing them. Martin Early, a Colgate Enterprise salesperson, testified at his deposition that doors providing egress from a construction site must open outward, but must be recessed. Although plaintiffs nowhere cite a statute or regulation requiring doors opening outward onto a sidewalk to be recessed, Colgate Enterprise's violation of its own construction standards constitutes evidence of negligence. Ogarro v. St. Luke's Roosevelt Hosp. Ctr. , 158 A.D.3d 550, 551 (1st Dep't 2018) ; Lowenstein v. Normandy Group, LLC , 51 A.D.3d 517, 518 (1st Dep't 2008).
Since plaintiffs present evidence of both 170 Broadway NYC's and Colgate Enterprise's negligence in installing the door, which defendants do not rebut, plaintiffs are entitled to summary judgment on these two defendants' liability. Derix v. Port Auth. of NY & N.J. , 162 A.D.3d 522, 522 (1st Dep't 2018) ; Polini v. Schindler El. Corp. , 146 A.D.3d 536, 536 (1st Dep't 2017) ; Jean-Francois v. Port Auth. of N.Y. & N.J. , 137 A.D.3d 450, 450 (1st Dep't 2016). Plaintiffs are not required to demonstrate the absence of Spielmann's comparative negligence to obtain summary judgment on these defendants' liability. Rodriguez v. City of New York , 31 N.Y.3d 312, 324-25 (2018) ; Derix v. Port Auth. of NY & N.J. , 162 A.D.3d at 522.
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