Winne v. Town of Duanesburg
| Citation | 927 N.Y.S.2d 209,2011 N.Y. Slip Op. 05927,86 A.D.3d 779 |
| Parties | Sally WINNE, Respondent,v.TOWN OF DUANESBURG et al., Defendants,andFlorida Gulf Construction Company, Doing Business as Cranbrook Construction, Respondent,andJohn M. McDonald Engineering, P.C., Appellant. |
| Decision Date | 14 July 2011 |
| Court | New York Supreme Court — Appellate Division |
86 A.D.3d 779
927 N.Y.S.2d 209
2011 N.Y. Slip Op. 05927
Sally WINNE, Respondent,
v.
TOWN OF DUANESBURG et al., Defendants,andFlorida Gulf Construction Company, Doing Business as Cranbrook Construction, Respondent,andJohn M. McDonald Engineering, P.C., Appellant.
Supreme Court, Appellate Division, Third Department, New York.
July 14, 2011.
[927 N.Y.S.2d 210]
Fox & Kowaleski, L.L.P., Clifton Park (Lisa L. Gokhulsingh of Gannon, Lawrence & Rosenfarb, New York City, of counsel), for appellant.Finkelstein & Partners, L.L.P., Newburgh (Ann R. Johnson of counsel), for Sally Winne, respondent.Corrigan, McCoy & Bush, Rensselaer (Scott W. Bush of counsel), for Florida Gulf Construction Company, respondent.Before: PETERS, J.P., ROSE, LAHTINEN, MALONE JR. and McCARTHY, JJ.McCARTHY, J.
[86 A.D.3d 780] Appeal from an order of the Supreme Court (Kramer, J.), entered April 28, 2010 in Schenectady County, which denied a motion by defendant John M. McDonald Engineering, P.C. for summary judgment dismissing the complaint and the cross claim of defendant Florida Gulf Construction Company.
Defendant Town of Duanesburg entered into a contract with defendant John M. McDonald Engineering, P.C. (hereinafter defendant) to design a new sewer system for a portion of the Town and oversee its implementation. The Town entered into a separate contract with defendant Florida Gulf Construction Company, doing business as Cranbrook Construction (hereinafter Cranbrook), to construct the system. The project required Cranbrook to place main sewer lines in the roadways, with lateral sewer lines running from the main line to the boundaries of privately-owned properties in the sewer district. Defendant's plans called for the individual property owners to place a Town-issued, two-by-two wooden stake where they wanted the lateral line to enter their property. Cranbrook would install a lateral line from the main line to the edge of the road at the location on the property line marked by the homeowner's stake. Cranbrook would put the end of a two-by-four wooden stake at the end of the lateral line and backfill the hole, with the dirt supporting the stake. That stake marked the spot where the homeowner would later need to connect the home's sewer pipes to the lateral line.
After receiving notice and a stake from the Town, plaintiff contacted a private contractor to place her stake in a location designating where the sewer should be connected to her home. They placed the stake near her house, about 8 to 10 feet from her driveway. Apparently, rather
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