Timmins v. Tishman Const. Corp.

• Citation: 9 A.D.3d 62,2004 NY Slip Op 04255,777 N.Y.S.2d 458
• Decision Date: 27 May 2004
• Docket Number: 2864.
• Parties: JOHN TIMMINS et al., Respondents, v. TISHMAN CONSTRUCTION CORP. et al., Doing Business as TISHMAN HARRIS WHITEHALL, et al., Appellants, et al., Defendant.
• Court: New York Supreme Court Appellate Division

9 A.D.3d 62

777 N.Y.S.2d 458

2004 NY Slip Op 04255

JOHN TIMMINS et al., Respondents, v. TISHMAN CONSTRUCTION CORP. et al., Doing Business as TISHMAN HARRIS WHITEHALL, et al., Appellants, et al., Defendant.

2864.

Appellate Division of the Supreme Court of the State of New York, First Department.

May 27, 2004.

APPEAL from an order of the Supreme Court, New York County (Paula J. Omansky, J.), entered June 24, 2003. The order denied defendant-appellants' motion for summary judgment dismissing the complaint in a personal injury action.

Weidenbaum & Harari, LLP, New York City (Allan H. Carlin of counsel), for appellants.

Tabak, Mellusi & Shisha, New York City (Jacob Shisha and Stephen B. Roberts of counsel), for respondents.

OPINION OF THE COURT

SULLIVAN, J.

This appeal presents the issue of whether a contractor has a duty of care arising out of its contractual obligations so as to impose liability to an injured noncontracting party.

Plaintiff, employed by the New York City Department of Transportation (DOT) as a deckhand assisting passengers entering and exiting the ferry at the Whitehall Ferry Terminal, owned by the City of New York and operated by DOT, sues for personal injuries allegedly sustained while he was pushing open a rolling gate. His wife also seeks damages for her alleged loss of consortium. At the time of the accident, the Terminal, which has an upper and lower level and three slips for docking, was undergoing a substantial renovation.

Defendants Tishman Construction Corp. and Frederick R. Harris, Inc., both doing business as Tishman Harris Whitehall (Tishman/Harris), constituted a joint venture that was the construction manager for the renovation project under a contract with the New York City Economic Development Corporation (EDC). Pursuant to a separate contract with the EDC, defendant Seasons Contracting Corp. was the general contractor for the demolition work.

Since the rebuilding of the Terminal was an extensive and long-term project involving distinct phases of demolition and construction, the work was arranged to avoid any interruption of ferry service between Manhattan and Staten Island. As the contract between Tishman/Harris and the EDC specifically acknowledged: "The provision of uninterrupted 24-hour-a-day ferry service for the 60,000 daily passengers to and from two of the three existing ferry slips is a critical requirement during construction of the Project. A construction phasing plan that satisfies this requirement and provides continuity of all major operational and passenger services throughout the construction period will be implemented."

In July 2000, as part of the phased construction activities arranged to accommodate the demolition of slip No. 3, changes had to be implemented in the flow of passengers to and from the ferries. This included the installation in the summer of 2000 of eight-feet-high rolling chain-link gates to enclose the walkway between slip No. 2 and the passenger waiting room on the upper level of the ferry terminal. Tishman/Harris subcontracted the installation of these gates to defendant Seasons, which, in turn, subcontracted the job to defendant Regional Scaffolding & Hoisting Co., Inc. Regional then subcontracted the fabrication and installation of the gates to defendant Bayside Fencing, Inc.

According to Bayside's vice-president, this type of gate, known as a cantilever gate, standard at a construction site, hung from an overhead roller track and was designed to slide open and closed between vertical posts. In order for the gate to be balanced so that it would slide without dragging on the ground, the distance between the vertical posts should be approximately one foot less than one half of the width that the gate is designed to enclose. If, for instance, a cantilever gate is designed to cordon off an area 20 feet wide, the distance between the vertical posts should be approximately nine feet. Shortly after the installation of the gate involved herein, DOT informed Tishman/Harris that it needed to be modified so as to provide a wider opening for passenger traffic. Thereafter, one of the vertical posts was moved four to five feet to widen the opening. A few days after the modification was made, DOT informed Tishman/Harris that the end of the gate was dragging on the ground for a few feet before reaching its fully closed position, a condition that was apparently the result of the relocation of the vertical post, which caused the gate to become unbalanced. The problem was promptly rectified by the addition of footage to the tail end of the gate, which balanced its front end when the gate was in a fully closed position, and a six-inch standard rubber wheel at the front end of the gate. Tishman/Harris and Seasons inspected the gate after the modification, finding it be in good working order, and approved payment to Regional.

Plaintiff claims that he was injured while moving the gate on November 3, 2000. At his deposition, he testified that he was unable to move the gate because it "was broken, dragging on the ground," adding, "There was no wheel at the bottom of the gate where there was supposed to be a wheel." He testified further that there had been a wheel on the gate when it was installed but that it had been subsequently replaced when it had broken off. Plaintiff claimed there had been no wheel on the gate for approximately two weeks before the accident.

It is uncontroverted that ferry service was provided on an uninterrupted basis from slip No. 2 from the summer of 2000 through the date of the accident and that DOT was in operational control of the upper level of the Terminal, where the gate was located, during this period of time. It is also undisputed that the daily activity reports at the job site, as produced during discovery, confirm that no ongoing demolition or construction work was conducted on the upper level of the Terminal between the installation of the gate during the summer of 2000 and the date of the accident. The Ferry Terminal project contracts of Tishman/Harris and Seasons with EDC do not contain any provision obligating either Tishman/Harris or Seasons to maintain the upper level of the Terminal or to inspect it for any defective conditions during the period between the time of the installation and modification of the gate and the date of the accident.

After joinder of issue and discovery, Tishman/Harris, Seasons and Regional, collectively the Tishman defendants, moved for summary judgment dismissing the complaint, arguing that they did not have control of the Ferry Terminal during the relevant time period and that none of them had any contractual obligation to inspect or maintain the premises where plaintiff was injured. Thus, as argued, they did not owe a duty of care to plaintiff. Supreme Court denied the motion, holding that a triable issue of fact existed as to whether any of the defendants had continuing access to the area or a continuing obligation to maintain the gate. The court also found a factual issue as to whether the gate was improperly designed or installed in the first instance. In our view, whether defendants had continued access to the area is irrelevant to the issue presented, i.e., whether defendants owed a duty to plaintiff to maintain the gate. Since none of the reasons propounded to deny the motion withstand scrutiny, we reverse and grant summary judgment.

The threshold issue is the extent, if any, of the duty of care that the Tishman defendants, as contractors, owed to plaintiff, a noncontracting party to their contractual arrangements with EDC and each other. In a recent decision (Church v Callanan Indus., 99 NY2d 104 [2002]), the Court of Appeals again had occasion to set forth the general rule that a contractor does not owe a duty of care to a noncontracting third party. A duty of care to noncontracting third parties, however, may arise out of a contractual obligation or the performance thereof in three sets of excepted circumstances, in which case the promisor is subject to tort liability for failing to exercise due care in the execution of the contract (id.; see also Espinal v Melville Snow Contrs., 98 NY2d 136, 139-141 [2002]; H.R. Moch Co. v Rensselaer Water Co., 247 NY 160 [1928]; Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220 [1990]; and Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579 [1994]). Citing Espinal, the court in Church identified those circumstances as: first, "where the promisor, while engaged affirmatively in discharging a contractual obligation, creates an unreasonable risk of harm to others, or increases that risk" (99 NY2d at 111); second, "where the plaintiff has suffered injury as a result of reasonable reliance upon the defendant's continuing performance of a contractual obligation" (id.), and third, "`where the contracting party has entirely displaced the other party's duty to maintain the premises safely'" (id. at 112, quoting Espinal, 98 NY2d at 140). In the latter instance, unlike the first exception, "the promisor . . . may indeed be liable for failing to make conditions safer for the injured party" (Church, 99 NY2d at 112).

In Espinal, the injured plaintiff, who slipped on an icy condition on her employer's parking lot, sued a company under contract to her employer to plow and remove snow from the premises. The plaintiff there relied almost entirely on the third exception. The Court of Appeals refused to impose tort liability on the contractor, finding that its contractual undertaking was not the type of "comprehensive and exclusive" property maintenance obligation that entirely...