Kramer v Cury

Kramer v Cury 2012 NY Slip Op 00913 Decided on February 9, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 9, 2012
Tom, J.P., Sweeny, Acosta, Renwick, Román, JJ.
6778 20228/07 84132/08

[*1]Joseph Kramer, Plaintiff-Respondent,

v

Virginia Cury, Defendant-Respondent, Marty Chan, et al., Defendants, .S.R. Mechanical Corp., Defendant-Appellant. [And a Third Party Action]




Ahmuty, Demers & McManus, Albertson (Brendan T.
Fitzpatrick of counsel), for appellant.
The Dauti Law Firm, P.C., New York (Ylber Albert Dauti of
counsel), for Joseph Kramer, respondent.
Law Office of James J. Toomey, New York (Evy Kazansky of
counsel), for Virginia Cury, respondent.

Order, Supreme Court, Bronx County (John A. Barone, J.), entered October 27, 2010, which, insofar as appealed from, denied the motion of defendant plaintiff V.S.R. Mechanical Corp. (VSR) for summary judgment dismissing the complaint and all cross claims as against it, unanimously affirmed, without costs.

Dismissal of the complaint as against VSR is not warranted in this action where plaintiff sustained injuries when he allegedly fell in a trench in the workshop of a boat motor repair shop. "[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party" (Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]). However, "an exception exists where a contractor who undertakes to perform services pursuant to a contract negligently creates or exacerbates a dangerous condition by launching its own force or instrument of harm'" (Cornell v 360 W. 51st St. Realty, LLC, 51 AD3d 469, 470 [2008], quoting [*2]Moch Co. v Rensselaer Water Co., 247 NY 160, 168 [1928]). Here, the record presents triable issues of fact as to whether VSR directed the digging of the subject trench, and did further digging in it once the trench was created (see Grant v Caprice Mgt. Corp., 43 AD3d 708 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 9, 2012

CLERK