DiMaggio v Skanska USA Bldg., Inc.

DiMaggio v Skanska USA Bldg., Inc. 2017 NY Slip Op 02369 Decided on March 28, 2017 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 March 28, 2017
Friedman, J.P., Sweeny, Renwick, Andrias, Manzanet-Daniels, JJ.
3521 150387/13

[*1]Ross DiMaggio, Plaintiff-Respondent,

v

Skanska USA Building, Inc., et al., Defendants, Park Avenue Building & Roofing Supplies, Inc., Defendant-Appellant.

McGaw, Alventosa & Zajac, Jericho (Ross P. Masler of counsel), for, appellant.

Sacks and Sacks LLP, New York (Scott N. Singer of counsel), for respondent.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered October 9, 2015, which, to the extent appealed from as limited by the briefs, denied the branch of defendant Park Avenue Building & Roofing Supplies, Inc.'s (Park Avenue) motion for summary judgment that sought dismissal of the common-law negligence claim and the common-law indemnification and contribution cross claims against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of Park Avenue dismissing the complaint and all cross claims against it.

Plaintiff, employed by a nonparty, testified that he fell after he picked up a pipe, stepped to his right, and slipped on a muddy, softball-sized, chopped-up piece of concrete. Plaintiff never testified that he could not use lifting equipment available to him because of the way the pipes had been stacked. Accordingly, the connection between Park Avenue's alleged negligence in placing the pipes and plaintiff's injury is too attenuated to conclude that Park Avenue's malfeasance proximately caused the accident (see Escalet v New York City Hous. Auth., 56 AD3d 257, 258 [1st Dept 2008]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 28, 2017

CLERK