Szulinska v. Elrob Realty, LLC

• Decision Date: 13 January 2021
• Docket Number: Index No. 500837/15,2018–09415
• Citation: 190 A.D.3d 777,135 N.Y.S.3d 851 (Mem)
• Parties: Teresa SZULINSKA, appellant, v. ELROB REALTY, LLC, et al., defendants, New Empire Builder Corp., respondent.
• Court: New York Supreme Court — Appellate Division

190 A.D.3d 777

135 N.Y.S.3d 851 (Mem)

Teresa SZULINSKA, appellant,

v. ELROB REALTY, LLC, et al., defendants,New Empire Builder Corp., respondent.

2018–09415

Index No. 500837/15

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

Submitted—October 8, 2020

January 13, 2021

William Pager, Brooklyn, NY, for appellant.

Fleischner Potash LLP, Mineola, N.Y. (Nancy Davis Lewis of counsel), for respondent.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Loren Baily–Schiffman, J.), dated June 28, 2018. The order granted the motion of the defendant New Empire Builder Corp. for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly sustained injuries as the result of an incident that occurred on September 16, 2014, when she tripped and fell on a sidewalk bridge abutting a construction site owned by the defendant Elrob Realty, LLC (hereinafter Elrob). The defendant New Empire Builder Corp. (hereinafter New Empire) was listed as a contractor on certain building permits relating to the construction site.

The plaintiff commenced this personal injury action against Elrob and New Empire, and another defendant. After the completion of discovery, New Empire moved for summary judgment dismissing the complaint insofar as asserted against it, contending, inter alia, that it did not construct the allegedly dangerous sidewalk bridge, had no duty to maintain or repair it, and consequently, did not owe the plaintiff a duty of care. The Supreme Court granted New Empire's motion, and the plaintiff appeals.

"As a general rule, liability for a dangerous or defective condition on property is predicated upon ownership, occupancy, control, or special use of the property" ( Leitch–Henry v. Doe Fund, Inc., 179 A.D.3d 655, 113 N.Y.S.3d 569 ; see Ruffino v. New York City Tr. Auth., 55 A.D.3d 817, 818, 865 N.Y.S.2d 667 ). In New York City, "[n]otwithstanding any other provision of law, the owner of real property abutting any sidewalk ... shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition" (Administrative Code of City of N.Y. § 7–210[b] ).

Here, it is undisputed that Elrob, not New Empire, was the owner of the adjacent property. At most, New Empire had a contractual relationship with Elrob. " ‘[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party’ " ( Arnone v. Morton's of Chicago/Great Neck, LLC, 183 A.D.3d 862, 862, 122 N.Y.S.3d , quoting Espinal v. Melville Snow Contrs. Inc., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485 ). "However, there are ‘three situations in which 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: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely’ " ( Arnone v....