Bone v City of New York

[*1] Bone v City of New York 2009 NY Slip Op 52520(U) [25 Misc 3d 1240(A)] Decided on October 30, 2009 Supreme Court, New York County Smith, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 30, 2009
Supreme Court, New York County

Jose Bone, Plaintiffs,

against

City of New York, DELCOR ASSOCIATES, INC., BJ PIPING & HEATING CO., and H & S CONTRACTING OF NY, INC., Defendants.



111464/06

Karen Smith, J.

Co-defendant Delcor Associates, Inc.'s ("Delcor") motion for summary judgment, pursuant to CPLR § 3212, dismissing all claims and cross-claims against it, is hereby granted, as discussed more fully below.

This case arises from an accident in a shower. At the time, plaintiff was living with his mother in a building owned by co-defendant City of New York ("the City") at 2170 Amsterdam Avenue, New York, New York. Plaintiff and his mother had been temporarily relocated to 2170 Amsterdam Avenue, Apartment No.2 ("Apartment #2") while their apartment in another City-owned building was being renovated. While taking a shower at Apartment #2, on January 2, 2006, plaintiff hit his arm on a steam pipe, which burned him and caused him to fall and sustain further injuries.

Delcor is a construction company who, at the time of the accident, had an agreement in place with the City's Department of Housing Preservation and Development, pursuant to which Delcor agreed to act as construction manager for repair and rehabilitation projects in various apartment buildings owned by the City, including the one in which plaintiff was injured. Delcor subcontracted work at the building where plaintiff was injured to H & S Contracting of New York ("H & S"). Pursuant to the contract, work was to commence on June 30, 2005 and to

be completed by July 15, 2005.

On July 10, 2006, plaintiff commenced an action in Kings County by serving Summons and Verified Complaint on co-defendants Delcor, H & S, and BJ Piping & Heating Co. A Verified Answer was served on behalf of Delcor on September 12, 2006. In August 2006, plaintiff commenced a second action based on the same accident against the City in New York County. On October 16, 2007, the court in Kings County issued an Order transferring the first action to New York County and consolidating it with the second action.

In support of its motion for summary judgment pursuant to CPLR § 3212, Delcor submits: 1) the Verified Complaint and Summons against the City; 2) the Verified Answer from [*2]Delcor; 3) plaintiff's Note of Issue and Certificate of Readiness for trial; 4) plaintiff's Verified Bill of Particulars; 5) the transcript of plaintiff's deposition; 6) the transcript of the deposition of Alfonso Polanco on behalf of the City; 7) the transcript of the deposition of Raffael Santrorelli on behalf of the City; 8) the transcript of the deposition of Gerard Giuseppone on behalf of the City; 9) the transcript of the deposition of Francis O'Hara on behalf of Delcor; 10) the transcript of the deposition of Shahzad Babar on behalf of H & S; 11) the transcript of the deposition of Bernard James on behalf of BJ Piping & Heating; 12) the management contract between the City and Delcor; 13) Delcor's survey/cost estimates and the City's letter approving work to be done at 2170 Amsterdam Avenue; 14) Delcor's "Scope of Work" document; 15) Delcor's bid documents and the City's letter approving H & S as the subcontractor to do work at 2170 Amsterdam Avenue; 16) the contract between Delcor and H & S; 17) H & S payment requisition; 18) Notice to Admit served by Delcor directed to the City; and 19) photographs.

Delcor argues that it cannot be held liable to plaintiff because it did not perform any work in the apartment in which plaintiff's accident occurred. Delcor submits the contract between itself and the City and the contract between itself and H & S, both of which refer to "2170 Amsterdam Avenue, Apartment #1," ("Apartment #1") and describe the apartment as having two bedrooms. The apartment where plaintiff's accident took place is Apartment #2, and it has only one bedroom. Delcor also submits the deposition of its employee, Francis O'Hara, and H & S's employee, Shahzad Babar, both of whom testified that the work was done in Apartment #1.

Delcor argues that even if the contracts did refer to Apartment #2, neither the contract between itself and the City, nor the contract between itself and H & S refers to any work with respect to the bathroom steam pipe. Finally, Delcor argues that as an independent contractor, it owed no duty to the plaintiff, and is thus not liable.

Plaintiff, in his opposition papers, argues that Delcor performed work in his bathroom prior to the accident and violated its duty to plaintiff; specifically, plaintiff argues that by renovating plaintiff's entire bathroom, and placing a steam pipe within the bathtub, Delcor has failed its duty to plaintiff. In support of this argument, plaintiff refers to the deposition of the City's witness, Alfonso Polonco, who testified that Delcor did work in Apartment # 2, the apartment in which plaintiff was injured. Plaintiff also submits two documents to corroborate the testimony of Polonco. The first is an "Application and Certificate for Payment," submitted byH & S, which lists Delcor as the construction manager, and in which H & S asks for $32,670 for work done in Apartment #2. The second is an undated "Scope of Work" document, which details tasks to be done, including in the bathroom, for an apartment alternately referred to as "2170 Amsterdam Avenue (#2)" and "Apartment 2D."

Delcor responds to plaintiff's opposition by arguing that Mr. Polonco, the City's deponent, had no information about the scope of the work performed at 2170 Amsterdam Avenue, citing his admission that he is "not the building coordinator for that particular building" and that he is "not sure what is going on there." With respect H & S's application for payment, Delcor argues that the application's description of the apartment is identical to the description of Apartment #1 in Delcor's agreements with the City and H & S, and that Apartment #2 was substituted on the application by typographical error. With respect to the scope of work document, Delcor argues that it has never been authenticated and that, in any event, it refers to a two-bedroom apartment [*3]and plaintiff has testified that he was injured in a one-bedroom apartment.

None of the co-defendants oppose Delcor's motion. Delcor, however, submits a Notice to Admit served on the City on January 23, 2009. The Notice to Admit cautioned that pursuant to CPLR § 3123, a failure to respond within 20 days would be deemed an admission to the contents of the Notice. Since more than 200 days have passed since the Notice to Admit was served, and the City has not responded, Delcor argues that the contents of the Notice are deemed admitted by the City. The Notice contains, among other things, admissions that: 1) prior to the date of the accident, Delcor "contracted with the City of New York to undertake a renovation project at 2170 Amsterdam Avenue, Apartment #1": 2) prior to the date of the accident, Delcor "did not contract with the City of New York to perform any services with respect to 2170 Amsterdam Avenue, Apartment #2"; 3) prior to the date of the accident, the City "contracted with ProManagement Associates, Inc. to undertake a renovation at 2170 Amsterdam Avenue, Apartment 2"; and 4) that Apartment #1 was a two-bedroom apartment and that Apartment #2 was a one-bedroom apartment.

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in an admissible form to demonstrate the absence of any material issues of fact (Alvarez v. Prospect Hosp., 68 NY2d 320 [1987]). Once the movant has made such a showing, the burden then shifts to the opposing party to produce evidence in admissible form sufficient to establish the existence of any material issues of fact requiring a trial of the action (Zuckerman v. City of New York, 49 NY2d 557]).

It is well settled that, with three exceptions, an independent contractor owes "no duty of care to a noncontracting third party arising out of its contractual obligation or the performance thereof" (Jackson v. Bd. of Educ. of NY, 30 AD3d 57 [1st Dept 2006]. The first exception to this rule is when the independent contractor, "while engaged affirmatively in discharging a contractual obligation, creates an unreasonable risk of harm to others, or increases that risk" (Church v. Callahan Indus., 99 NY2d 104, 111 [2002], citing Moch Co. V. Renssaelaer Water Co., 247 NY 160 [1927] [describing this creation of risk as "launching a force or instrument of harm"]). The second exception is "where the plaintiff has suffered injury as a result of reasonable reliance upon the defendant's continuing performance of a contractual obligation" (Id.). The third exception allows liability "where the contracting party has entirely displaced the other party's duty to maintain the premises safely" (Id. at 112).

Here, Delcor makes a prima facie showing of entitlement to summary judgment by submitting evidence that it was an independent contractor which did not launch an instrument of harm, that the plaintiff did not rely on its continuing performance of a contractual obligation, and that the City did not entirely displace its duty to maintain the premises safely. Delcor makes a strong evidentiary showing that it performed no work in the building where plaintiff was injured. First, Delcor submits its contract with the City, which indicates work to be done at Apartment #1, not Apartment #2. Next, Delcor submits its contract with H & S, which shows that Delcor subcontracted work at Apartment #1, not Apartment #2, to H & S. Plaintiff attempts to rebut this showing by arguing that Delcor created the risk of harm, relying on the testimony of City deponent Alfonso Polonco. Polonco's testimony, however, is contradicted by the City's subsequent admission that it did not contract with Delcor to perform any services at Apartment [*4]#2 prior to the time of the accident.

As a result, plaintiff fails to raise an issue of material fact as to whether Delcor created the risk of harm. Since plaintiff fails to raise an issue as to one of the exceptions to the rule that an independent contractor owes no duty to a third party arising out of its contractual obligations, Delcor had no duty to plaintiff as a matter of law and is entitled to summary judgment pursuant to CPLR § 3212.

Accordingly, it is

ORDERED that defendant Delcore Associates, Inc.'s motion for summary judgment pursuant to CPLR § 3212 is hereby granted; it is further

ORDERED that the Clerk enter judgment in favor Delcore Associates, Inc., dismissing all claims and cross-claims against it.

The foregoing constitutes the decision and order of this court.

Dated: October 30, 2009ENTER:

____________________________

Hon. Karen S. Smith,J.S.C.