Miller v City of New York

Miller v City of New York 2012 NY Slip Op 08074 Decided on November 27, 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 November 27, 2012
Tom, J.P., Saxe, Richter, Abdus-Salaam, Feinman, JJ.
8630 108972/09 591010/09

[*1]Jodi Miller, Plaintiff, The

v

City of New York, et al., Defendants, Consolidated Edison Company of New York, Inc., Defendant-Appellant, Safeway Construction Enterprises, Inc., Defendant-Respondent. Consolidated Edison Company of New York, Inc., Third-Party Plaintiff-Appellant, Safeway Construction Enterprises, Inc., Third-Party Defendant-Respondent, Nico Asphalt, Inc., Third-Party Defendant.




Office of Richard W. Babinecz, New York (Stephen T. Brewi of
counsel), for appellant.
Rafter and Associates PLLC, New York (Patrick B. McKeown
of counsel), for respondent.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered November 7, 2011, which, to the extent appealed from, granted third-party defendant Safeway Construction Enterprises, Inc.'s motion for summary judgment dismissing the complaint and the third-party complaint as against it, unanimously affirmed, without costs.

Pursuant to a contract with Con Ed, Safeway performed excavation, conduit installation, and backfilling at an intersection where, a few days later, plaintiff allegedly was injured when the front wheel of her scooter fell into a trench in the roadway. The contract called for Safeway to leave the trench an inch and a half below grade; the Con Ed construction representative who oversaw Safeway's work testified that Safeway restored the trench to a depth of an inch and a half below grade. In opposition to this prima facie showing that Safeway did precisely what it [*2]was obligated to do under the contract, Con Ed failed to raise an issue of fact whether Safeway performed its contractual obligations negligently and created an unreasonable risk of harm to plaintiff, for whose injuries it could be held liable (see Espinal v Melville Snow Contrs., 98 NY2d 136 [2002]; Agosto v 30th Place Holding, LLC, 73 AD3d 492, 493 [1st Dept 2010]). We reject Con Ed's contention that Safeway owed plaintiff a duty pursuant to general negligence principles (see Espinal, 98 NY2d at 140).

Contrary to Con Ed's contention, no issue of fact exists whether Safeway breached its contractual duty to "protect and maintain" the 1½-inch-deep trench for five days after completing its work by failing to place cones or barricades in the vicinity. Pursuant to article 7.6 of Con Ed's "Trenching Manual," Safeway was "responsible for maintaining excavations and plates for a period of 5 working days from the date excavations are available for use by others." However, as defined in article 21 of Con Ed's "Standard Terms and Conditions of Construction Contracts," "maintenance" means keeping the work site "neat, orderly and workmanlike" so as not to interfere with the progress of work
performed there; the definition does not refer to the safety of the general public.

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

ENTERED: NOVEMBER 27, 2012

CLERK