Scansarole v Madison Sq. Garden, L.P.

[*1] Scansarole v Madison Sq. Garden, L.P. 2009 NY Slip Op 51895(U) [24 Misc 3d 1246(A)] Decided on August 4, 2009 Supreme Court, New York County Gische, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 4, 2009
Supreme Court, New York County

Lisa Scansarole, Plaintiff,

against

Madison Square Garden, L.P. and Madison Square Garden Center, Inc., and Turner Construction Company, Defendants.



Jaclyn Daly, Plaintiff,

against

Madison Square Garden, L.P. and Madison Square Garden Center, Inc., and Turner Construction Company, Defendants.



Jaclyn Daly, Plaintiff,

against

Charles Luckman Associates, Inc., The Charles Luckman Partnership, Inc., and The Charles Luckman Partnership, Inc., As successor in interest to Charles Luckman Associates, Inc., Defendants.



Lisa Scansarole, Plaintiff,

against

Charles Luckman Associates, Inc., The Charles Luckman Partnership, Inc., and The Charles Luckman Partnership, Inc., As successor in interest to Charles Luckman Associates, Inc.,Defendants.



123651/02



For Plaintiff Lisa Scansarole

William P. Hepner, Wingate, Rusottin, Shapiro, Esq.

NY, NY 10170

For Plaintiff Jaclyn Daly

Thomas Tormey, Jr., NY, NY

For Defendant Turner Construction

Voute, Lohrfink, Margro & Collins, LLP, White Plains, NY

Defendant MSG

Lewis Brisbois Bisgaard & Smith, NY, NY

Defendant Charles Luckman Associates

Wilson Elser Moskowitz Edelman

White Plains, NY

Judith J. Gische, J.

The above captioned actions are assigned to this court. The cases by plaintiffs Lisa Scansarole ( Scansarole") and Jaclyn Daly ( Daly") against Madison Square Garden, L.P. et al ( MSG") and Turner Construction Company ( Turner") were previously consolidated under the Scansarole, or 1st action" (index number 12365/02) as per the plaintiffs' stipulation with MSG, so-ordered stipulation by Hon. Saralee Evans ( consolidation order").

Since the Scansarole and Daly cases were consolidated, the plaintiffs have each, separately, commenced actions against Charles Luckman Associates, Inc. et al ( Luckman"), alleging negligence/ architectural malpractice pursuant to CPLR § 214 with due notice of claim (index no. 104624/05 and 104624-05) ( 3rd action" and 4th action"). Turner has commenced a third party action against Daly for indemnification (T.P. index no. 590595-09) ( 3rd party action") if it is held liable to Scansarole for damages.

There are three motions and a cross motion before the court. They are as follows: [*2]

Turner seeks summary judgment dismissing the Scansarole and Daly complaints against it (sequence no. 6 in 1st action).

Luckman has moved for summary judgment dismissing Scansarole and Daly's claims against it.[FN1]

MSG has cross moved for indemnification against Turner and Luckman. MSG has withdrawn its motion as to Luckman only (see 12/8/08 so-ordered stipulation), but the motion remains to be decided as to Turner.

Scansarole and Daly each separately oppose Turner and Luckman's motions. MSG opposes Turner's motion and Turner opposes MSG's motion. Neither Scansarole nor Luckman take any position on the relief MSG seeks against Turner. A prior motion by MSG for summary judgment dismissing the Scansarole and Daly complaints was denied for the reasons stated in the court's decision of May 17, 2005 [FN2]. Daly has since settled her case against MSG.

Consequently, this decision not only consolidates the three motions and cross motion for decision in a single decision/ order, the court's decision/order will be filed in all four (4) above captioned actions.

At oral argument of these motions, the court reserved decision on whether it would accept sur-reply papers submitted by plaintiff. Plaintiffs were permitted to put in a sur-reply to address new claims raised by defendants. Defendants contend that plaintiffs' sur-reply exceeds the scope of what was permitted by the court. After reviewing the sur-reply, the court decides it will be considered in its entirety. The presentation of the additional sworn affidavit of Dolores Spivack merely identifies the person who assisted Nacheman (plaintiffs' engineering expert) with his research. This is provided in response to defendants' criticism of how Nacheman compiled his information. Other arguments in the sur-reply have more than amply been addressed by the defendants at one point or another in their papers. Defendants have shown no prejudice.

No note of issue has yet been filed in the 3rd or 4th actions; the note of issue in the 1st and 2nd actions were filed on different dates. These motion are all timely made, and in keeping with the requirements of CPLR § 3212; they will decided on their merits. CPLR § 3212; Brill v. City of New York, 2 NY3d 648 (2004).

Since the court already detailed the circumstances of this case in its prior decision denying MSG's motion for summary judgment (Gische J., Decision/Order, 5/12/05), they will not be repeated here unless necessary.

Arguments presented

It is alleged that Scansarole was severely injured on April 19, 2002 ( date of the [*3]accident") when she fell through a large, street level stationary panel of glass which at various points in this record is described as a window" or window-wall" (sometimes referred to herein as "window wall" or "glass panel"). This glass panel is located directly next to and to the left side of the entryway doors to 4 Penn Plaza, New York, New York. 4 Penn Plaza is a building within the Madison Square Garden Sports Complex which is owned by defendant MSG. The complex was built in the 1960's. Defendant Turner-Del Webb ( Turner") was the construction manager retained by MSG to build the complex and defendant Luckman was MSG's architect.

It is alleged that as a direct result of her accident, Scansarole had to have her leg amputated because it could not be saved. Plaintiff Daly, a friend, was with Scansarole when the accident happened. Daly also sustained physical injuries, including a laceration on her neck that is approximately 5-10 cm long. Defendants claim that Scansarole and Daly were involved in horseplay at the time of the accident, and that such activity was a contributing factor, if not the sole proximate cause, of Scansarole's accident. These claims form the underpinnings of Turner 3rd party action against Daly for indemnification.

Plaintiffs contend that Turner, MSG [FN3] and Luckman were negligent, based upon different legal arguments. Plaintiffs contend that Luckman, the architect, committed architectural malpractice because it negligently designed the window-wall" involved in their accident. According to plaintiffs, Luckman failed to exercise care and skill in its designs and/or deviated from accepted industry standards. Plaintiffs contend that although the 1938 code was the effective code at the time the window wall was designed and installed, as opposed to the 1968 code, the 1938 code set forth no standards at all for street level, non-opening, stationary, glass panels, let alone establish any special requirements for those types of panels. According to plaintiff, this is because when the 1938 code was enacted, such materials were an emergent technology, not widely used and not widely available.

Plaintiff contends that by 1962, when the designs for the MSG project were made, and certainly by 1966 when the construction began, the use of tempered and safety glass was prevalent and a reasonably competent architect would have revised its drawings to incorporate that kind of glass (or other safety measures) into its designs to make the street level glass panel safer. Plaintiff also claims that Luckman knew that the immediate area in front of 4 Penn Plaza was expected to attract many pedestrians and be densely populated because the MSG complex was being designed as a premier sports venue.

Although plaintiffs have no contractual privity with either Luckman or Turner, plaintiffs contend that the defendants failed to exercise due care in the execution of the contract, and while discharging their obligations, created or exacerbated a dangerous condition. Plaintiffs also argue that by failing to reasonably execute its duties, Luckman set or launched a force or instrument of harm, that proximately caused her injuries.

Plaintiffs allege Turner was negligent as well because, as the construction manager, Turner had an independent duty to comply with extra-contractual standards to insure public safety and that responsibility cannot be contracted away. Thus, plaintiff claims that because Luckman's designs were defective, Turner should have noticed that the project, if completed according to the architect's plans, was potentially dangerous. [*4]

Initially, the court notes that although none of the defendants could locate a complete copy of the contract pertaining to the construction of the MSG complex, they did find another document called General Construction Specifications for Madison Square Center Sports Complex" ( specifications"). The specifications bear the Charles Luckman Associates" name and logo on its cover and it includes a section entitled General Conditions." The general conditions define the contract documents" as consisting of the Agreement, the General Conditions, the Drawings and Specifications and other provisions . . ." Since the specifications, general conditions and drawings are a part of this record, the defendants agree that with the exception of the agreement itself, the court has the contract among the defendants pertaining to this project.

As per the general conditions, the owner of the project is identified as MSG, the architect as Luckman, and the agent for the project as Turner-Del Webb. The work" is defined to include labor, materials and services, supplies, plant and equipment required for the construction of any portion of the Project." The general conditions expressly provide that they define the relationship of the Architect and the various Contractors employed by Turner -Del Webb as Agent . . ." Section 3 of the general conditions also provides as follows:

Section 3. Prosecution of the Work.

The Work is to be performed in accordance with Drawings and Specifications prepared by Owner and the Architect and under the direction of the Agent, and the decision of the Architect as to the true meaning of the Drawings and Specification shall be final. The Owner shall make decisions on all claims or disputes between the Agent and any Contractor and the decision of the Owner shall be binding upon the parties."

All Drawings and Specifications for the Work and instructions and approvals by the Architect shall be issued to Contractors through the Agent and contractors shall submit their shop drawings, samples and requests for information and approvals of the Architect through the Agent. Drawings and Specifications reasonably required in connection with each Contract will be furnished to the Contractors by the Agent who will furnish each Contractor such additional Drawings and Specifications as may be prepared by the Architect to further describe the Work to be performed."

Section 8 of the specifications pertains to glass and glazing and specifies the types of materials to be used. Section 8E.04 shows that where a drawing (design) calls for the use of Type D" glass, this requires the installation of 1/4 inch clear polished plate glass is required. It is also undisputed that glass panel at issue is approximately 30 square feet in size.

Turner and Luckman have each moved for summary judgment. Though moving separately, they adopt each other's arguments for the most part and rely upon the same experts. Thus, arguments presented by Luckman apply to Turner (and vice-versa), unless otherwise provided.

Initially, both defendants deny owing plaintiffs a duty of care because they are third parties, there is no contractual relationship among them (i.e. privity), and neither defendant displaced the owner's duty to maintain the premises in a safe condition.

Luckman contends that it did not have exclusive control of the premises once it made the [*5]designs and that afterwards, others were involved in the project (including Turner). Luckman contends that its instructions, calling for the use and installation of 1/4 inch thick glass in the panel, as opposed to thicker or different glass were code compliant and because they were compliant, this eliminates any triable issues of fact, and resolves its negligence, as a matter of law.

The defendants rely upon the sworn affidavits of two experts. Jean Miele is a licensed professional architect ( Miele" at times defendants' architect") and Vincent Ettari is a professional engineer ( Ettari" at times defendants' engineer"). The experts agree with each other's opinions.

Both experts opine that the construction project at MSG was subject to the 1938 code and that the 1938 code required store front windows to be composed of fixed plate glass 1/4 inch thick, as set forth in section C26-649 of the Building Laws of the City of New York, 1938. Both opine that MSG was completed before the effective date of the 1968 code and that it did not have any retroactive effect to MSG's project. They argue that the 1962 revision of the code did not significantly alter the applicable provision of the 1938 code. C26-649.0 of the 1938 code pertains to protection of exterior openings" and it requires that:

Every opening in the exterior walls of public and business structures more than forty feet high which opening is thirty feet or less in a direct line, but in a different plane from any frame structure or from any opening in any other structure, or which opening is less than fifty feet in a vertical direction above a non-fireproof roof of an adjoining structure within a distance of thirty feet of the wall in which the opening is located, shall be equipped with an opening protective having a fire resistive rating of three-quarters of an hour, except that plate glass one-quarter of an inch thick may be used on street fronts of such structures regardless of the separation from other structures. All windows shall be of automatic type or fixed sash type and all door shall be self closing."

In a supplemental affidavit, Miele opines that not only were Luckman's designs code compliant, they were also consistent with the prevailing industry standards and practices at the time. Miele states that he consulted architectural periodicals of the 1960's and examined 40 buildings located in the vicinity of MSG. According to his examination, those buildings used plate glass, just like Luckman did in its designs. Miele also opines that a publication called Time Saver Standards Handbook of Architecture shows that the subject panel could withstand wind load pressure of 100 pounds per square foot.

Ettari agrees with Miele's opinion and separately opines that the 1938 code did not require any lateral load requirements, and therefore 1/4 inch glass was allowable under those circumstances. Ettari opines that the glass panel is a window" not a window-wall" or glass wall." He says this is meaningful because a wall has to support a vertical load from above, but this panel did not have to. Ettari opines that other standards plaintiffs' experts claims existed at the time were not generally accepted. Thus, both experts opine that compliance with the 1938 code, coupled with the issuance of the certificate of occupancy for the building is proof the glass panel was safe.

Luckman separately argues that it is entitled to summary judgment dismissing the plaintiffs' complaints because CPLR § 3212 (i) makes it easier for an architectural negligence case to be dismissed. Luckman has presented evidence that Mr. Luckman was a licensed [*6]architect when his firm made the designs for MSG. CPLR 3212 (i) provides as follows:

A motion for summary judgment in [a negligence action against an architect, etc.] shall be granted unless the party responding to the motion demonstrates that a substantial basis in fact and in law exists to believe that the performance, conduct or omission ... complained of ... was negligent and that such performance, conduct or omission was a proximate cause of personal injury...or is supported by a substantial argument for an extension, modification or reversal of existing law."

Luckman contends that plaintiffs have not met their burden of demonstrating a substantial basis" for their claim that the architect was negligent and that such negligence was a proximate cause of their injuries.

Turner separately argues that it followed Luckman's detailed architectural instructions and its reliance was justified because there were no obvious defects in the drawings or specifications.

MSG adopts the arguments presented by the plaintiffs in opposition to Luckman's and Turner's motions for summary judgment and also in support of its own cross motion for indemnification by those defendants. MSG argues that if it is found liable to the plaintiffs, then such liability is only vicarious, not active. MSG argues that it can obtain (and should be granted) full indemnification from Turner and Luckman, the parties who were the actual tortfeasors. MSG alleges that, as a matter of law, it is not responsible for any negligent acts by its those defendants who were its independent contractors on the project because the owner did not: provide any construction services on the project, it was Turner that assumed complete responsibility for the project, including the window, the owner did not direct, control or instruct how the work was done, and MSG did not create a dangerous condition.

MSG principally relies upon deposition testimony by Chester Zegler, Turner's assistant mechanical engineer. Zegler testified at his EBT that Turner built the complex, and was responsible for hiring subcontractors as needed. When asked whether it was Turner's custom and practice in any way in the 1960's to verify whether the specifications were in compliance with the building code fo the City of New York?" Zegler responded no."

In opposition to MSG's motion, Turner [FN4] argues that MSG is not entitled to common law indemnification if the owner was negligent, and therefore, until the liability issues are resolved, MSG's motion is premature. Turner argues that MSG (the owner) had a nondelegable duty to keep the premises safe. Furthermore, there is a triable issue of fact of whether, after 4 Penn Plaza was completed, MSG should have, but failed to, take other safety measures, including retrofitting the panel with safety glass, barriers, etc., that would have prevented plaintiffs' accident.

In opposition to these motions, plaintiffs rely upon the sworn affidavits [FN5] of two experts that they expect to call at trial. Donald Erwin, is a professional architect ( Erwin" at times plaintiffs' architect") and Robert J. Nacheman, is a professional engineer ( Nacheman" at times plaintiffs' engineer"). Nacheman opines that the section of the code that the defendants rely [*7]upon (C26-649) is completely inapplicable because it addresses the containment of fire, having nothing to do with the durability or strength of street level glass. Nacheman opines further that although such safety measures were not codified, this does not mean an architect did not have to consider the likelihood or danger of (human) impact on such glass. Therefore, according to Nacheman, the defendants should have consulted and followed industry standard and practices in deciding the type of glass to install in the panel at issue, which they failed to do.

Nacheman has reviewed certain literature and codes which he refers to in his affidavits, including the 1962 revision of the New York City building code, the 1964 Uniform Building Code, the 1968 New York City Building Code, and the American National Standard Institute Performance Standards ( ANSI"). He has also reviewed Luckman's designs and conducted [FN6] a survey of several buildings in the MSG area that were built before the MSG project was designed. Based upon his review and evaluation of this information, Nacheman opines that the introduction of a new section setting forth glass and glazing requirements in the 1968 code was a codification of prevailing industry practices, and an adoption of the 1964 Uniform Building Code and ANSI performance standards. Furthermore, according to Nacheman, many owners of older buildings had either incorporated safety glass, protective film (against shattering), or barrier rails in their designs, though not required under the 1938 code, to protect passers-by from falling through the street level glass panels.

Plaintiffs' architect agrees with Nacheman's opinion, that the defendants departed from generally accepted safety standards in the design, installation, construction of the glass panel ( window-wall"). Erwin separately opines that it was standard practice for building owners to come into conformance with the 1968 code by retrofitting their buildings by, for example, replacing regular glass with shatterproof safety glass or taking other measures, like putting up barriers.

Applicable Law

Although all three defendants have moved for summary judgment, Luckman's motion is pursuant to CPLR 3212 (i) whereas Turner and MSG's motions are conventional motions brought pursuant to CPLR 3212 (a). On each of their motions, Turner and MSG have the initial burden of setting forth evidentiary facts to prove their prima facie cases, such that they would each be entitled to judgment in their favor, without the need for a trial. CPLR § 3212; Winegrad v. NYU Medical Center, 64 NY2d 851 (1985); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). Only if this burden is met, will it then shift to the opposing party who must then establish the existence of material issues of fact, through evidentiary proof in admissible form, that would require a trial of this action. Zuckerman v. City of New York, supra.

When an issue of law is raised in connection with a motion for summary judgment, the court may and should resolve it without the need for a testimonial hearing. See: Hindes v. Weisz, 303 AD2d 459 (2nd Dept 2003).

However, when a motion is brought by a licensed professional architect under CPLR 3212 (i), such motion shall be granted" unless the party who opposes the grant of summary [*8]judgment provides evidence of a substantial basis in fact and in law" for its claim, that the professional was negligent, such negligence was a proximate cause of plaintiff's personal injury, or the motion is supported by a substantial argument for an extension, modification or reversal of existing law."

The language found in CPLR § 3211(h) (pre-answer motions) is very similar to that found in CPLR § 3212 (i), except where a motion to dismiss is brought before issue has been joined, plaintiff's facts are accepted as true. Castle Village Owners Corp., v. Greater New York Mutual Insurance Company, 58 AD3d 178 (1st Dept 2008). Substantial basis" has been construed as requiring a heightened scrutiny by the court, much like what the court is required to do when reviewing an administrative (Article 78) determination. Castle Village Owners Corp., v. Greater New York Mutual Insurance Company, supra at 184. Thus, substantial basis" consists of proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof . . . a conclusion or ultimate fact may be extracted reasonably-probatively and logically . . ." Castle Village Owner Corp. v. Greater New York Mutual Insurance Company, supra.

For the reasons more fully explained below, whether examined under the heightened requirements applicable to a motion against a licensed professional, or a conventional motion for summary judgment, there are triable issues of fact that require the denial of each motion before the court for summary judgment.

Discussion

Although the defendants raised a number of arguments in support of their motions for summary judgment, the leading argument concerns the issue of whether the glass panel itself was dangerous.

At the outset, the court addresses defendants' misconception that the court has already decided that the 1938 code is applicable and, therefore, determinative of the parties' dispute. Although the court in its prior decision/order denying MSG's motion for summary judgment, decided that [t]he applicable building code ... is the 1938 code" the issue before the court on that motion was different and MSG was the only defendant. Among other disputes, the court was called upon to decide in the prior motion whether the 1938 code - as opposed to the 1968 code - applied to the facts of this case. Then, as now, the court finds that the 1968 code does not apply to the parties' dispute. The 1968 code did not become effective until after 4 Penn Plaza was designed and the necessary construction permits issued. Moreover, the 1968 code did not retroactively apply to the MSG project. Therefore, the effective - and therefore applicable" building code - to the facts of this case is, as a matter of law, 1938 code.

This determination, however, does not resolve any of the issues now before the court about whether any of the defendants were negligent. The court rejects defendants' contention that because they complied with the provisions of the 1938 code, their compliance is a complete defense to plaintiffs' claims against them, as a matter of law. Plaintiffs have not only raised triable issues of fact, precluding summary judgment, they have also proved although the 1938 code was applicable," in the sense it was the effective" code at the time, the 1938 code is wholly inapplicable to the circumstances of this case. The 1938 code did not specifically identify or set forth any requirements for stationary, non-opening, fixed glass panels like the one involved in [*9]plaintiffs' accident, primarily because such technology did not exist or was nascent.

Although the defendants contend the glass panel involved in plaintiffs' accident is code compliant because it was 1/4 inch thick - as required under C26-649.0 of the 1938 code, the references to fire proof," fire resistive rating of three-quarters of an hour," and self closing," are terms commonly associated with fire protection and safety, having nothing to do with the resistance of glass to human (or other) impact.

On a motion for summary judgment, it is for the court to decide issues of law that are raised. Hindes v. Weisz, supra. The issue of whether a particular statute, building code, or administrative code provision applies is a question of law for the court to decide. Buchholz v. Trump 767 Fifth Avenue, supra. Here, the court is called upon to decide whether C26-649.0 of the 1938 code applies to the fixed glass panel at issue. The court finds that, as a matter of law, section C26-649.0 of the 1938 code does not apply. By its plain terms, it pertains to fire resistance, and not to safety standards on impact. Consequently, the court finds that, as a matter of law, defendants' compliance with section C26-649.0 does not warrant the grant of summary judgment to any one of them.

Even assuming, arguendo, that section C26-649.0 of the 1938 code does apply to the facts of this case, just as a violation of a local code is only evidence of negligence (Elliott v. City of New York, 95 NY2d 730 [2001]), code compliance does not determine whether a defendant breached its duty of care. see, In re September 11 Property Damage and Business Loss Litigation, et al v. The Port Authority of New York and New Jersey, et al, 468 F. Supp. 508 (S.D.NY 2006); Buchholz v. Trump 767 Fifth Avenue, LLC, 65 NY3d 1 (2005). This is because there may be generally accepted, industry wide standards and practices that are applicable, but not codified. see, Hotaling et al v. The City of New York, et al, 55 AD3d 396 (1st Dept 2008).

Here, each side has presented sworn affidavits by their experts. These opinions can best be described as polar opposites. Whereas defendants' experts opine that the 1938 code absolutely" applies to the facts of this case, plaintiffs' experts opine that the 1938 code contains no applicable requirements. Alternatively, plaintiffs' experts opine that even if the 1938 code does apply, the defendants did not meet prevailing industry standards as exemplified by other buildings built at or about the same time as MSG which were designed with safety features that should have been incorporated into the design and construction of this project. The plaintiffs' experts also opine that following the enactment of the 1968 code, many owners voluntarily chose to retrofit their buildings to include the enumerated safety features for fixed glass panels subject to impact loads. see, NYC Admin Code § 27-651 et seq. Such battle of the experts" presents quintessential triable issues of fact and it is for the jury to decide the credibility of an expert at trial. Mejia v. JMM Audubon, 1 AD3d 261 (1st Dept 2003).

Plaintiffs have not only satisfied their burden in opposing the conventional motions for summary judgment under CPLR § 3212 (a), but also the requirements of CPLR 3212 (i), by demonstrating there is a substantial basis (in fact and at law) for their claim that Luckman was negligent and such negligence was the proximate cause of their injures.

Turning to other arguments raised by defendants, chief among them is that they did not owe plaintiffs a duty of care and, therefore, plaintiffs cannot prove a necessary element of their negligence actions against them. Pulka v. Edelman, 40 NY2d 781 rearg den 41 NY2d 901 (1977). Principally, these arguments are based upon Luckman's claim that it was an independent [*10]contractor and Turner's claim that it dutifully followed Luckman's design specifications.

Generally, where an independent contractor provides services, that contractual duty does not give rise to a duty of care to persons outside the contract. Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136 (2002). There are three exceptions to this broad rule of law that will, however, expose the independent contractor to liability. Espinal v. Melville Snow Contractors, Inc., 98 NY2d at 139 (citing Palka v. Service Master Mgt. Svcs. Corp., 83 NY2d 579, 585-6 [1990]). The exceptions are where 1) the contractor launches a force or instrument of harm," by first undertaking a task, but then negligently creating or exacerbating a dangerous condition resulting in an injury; 2) the performance of contractual obligations has induced detrimental reliance on continued performance of those obligations; and 3) the contract is so comprehensive and exclusive that the contractor's obligations completely displace and absorb the landowner's responsibility to maintain the premises safely. Espinal v. Melville Snow Contractors, Inc., supra.

Plaintiffs contend that Luckman failed to use reasonable care in executing its contract, setting a ball in motion that negligently created or exacerbated a dangerous condition, resulting in their injuries. There are triable issues of fact whether Luckman should have used tempered or safety glass in the stationary, street level glass panel, or incorporated other safety features, given that the MSG complex would host major sports events and the area would have many pedestrians.

Plaintiffs also raise triable issues of fact whether Turner reasonably relied on the plans and specifications that Luckman prepared for the project. It is for the jury to decide whether Luckman's plans were so patently defective that they should have placed Turner, on notice that the project (i.e. installation of polished plate glass), if completed according to the plans, was potentially dangerous to the public. Gee v. City of New York, 304 AD2d 615 (2nd Dept 2003).

The underpinnings of MSG's cross motion for summary judgment against Turner is that if it is found liable in plaintiffs' cases against it, such liability is purely vicarious because it deferred to its construction manager.

Although a copy of the agreement has not been located, the general conditions requires that the work on the MSG complex project be performed according to the drawings and specifications prepared by the owner and architect . . ." it also provides that [t]he Owner shall make decisions on all claims or disputes between the Agent and any Contractor and the decision of the Owner shall be binding upon the parties." This language undercuts MSG's argument, that it did not exercise any supervision or control over the work being done on this project, and raises triable issues of fact that defeat MSG's motion. compare, Colyer v. K Mart Corp., 273 AD2d 809 (4th Dept 2000) (no evidence of supervision or control).

It is also well established law that a landowner is under a duty to maintain its property in a reasonably safe condition under existing circumstances, which includes the likelihood of injury to a third party. Perez v. Bronx Park South, 285 AD2d 402 (1st dept 2001). Turner has a raised triable issue of fact whether MSG, who had exclusive control over the glass panel since it was installed, should have taken steps after it was installed to make it safer. Plaintiffs' experts opine that this is standard practice for building owners and many of them brought older buildings into compliance with the 1968 code in the years following its enactment. [*11]

Since a party is entitled to common law indemnification only if it is determined to be vicariously liable without proof of any negligence or active fault on its own part, and there has been no determination in favor of MSG, that it was not negligent, MSG's motion must be denied. Colyer v. K Mart Corp., 273 AD2d at 809.

Conclusion

Turner and Luckman's motions for summary judgment are hereby denied. MSG's cross motion for summary judgment is also denied. Any relief requested that has not been addressed has nonetheless been considered and is hereby expressly denied. This constitutes the decision and order of the court.

Dated:New York, New York

August 4, 2009So Ordered:

_______________________

Hon. Judith J. Gische, J.S.C. Footnotes

Footnote 1:Although Luckman did not file a separate motion under the 3rd action, but only moved under the 4th action, clearly the architect seeks summary judgment in both actions. Part of the confusion may be that the parties intended, as Mr. Tormey explains in his affirmation, to consolidate all four actions but were unsuccessful because the 4th action was inadvertently omitted from their stipulation. The claims in each case against Luckman has been fully addressed by the other defendants and both plaintiffs.

Footnote 2:The decision was affirmed on appeal (see, Scansarole v. MSG, et al, 33 AD3d 517 [1st Dept 2006]).

Footnote 3:As previously indicated, Daly has settled her claims against MSG, but Scansarole has not.

Footnote 4:Turner's opposition pre-dates MSG's agreement with Luckman to withdraw its motion for indemnification as against the architect (see, 12/8/08 so-ordered stipulation).

Footnote 5:Each expert put in two sworn affidavits. The supplemental or second affidavit was permitted by agreement of the parties and so-ordered by the court.

Footnote 6:The person on his staff who actually did the leg work has also provided his sworn affidavit detailing the steps he took.