Ingleton v Brooks Shopping Ctrs., L.L.C

Ingleton v Brooks Shopping Ctrs., L.L.C 2014 NY Slip Op 07581 Decided on November 6, 2014 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 6, 2014
Mazzarelli, J.P., Acosta, Degrasse, Clark, JJ.
13404 302473/10 84052/10

[*1] Norma Ingleton, et al., Plaintiffs-Respondents,

v

Brooks Shopping Centers, L.L.C., et al., Defendants-Respondents, The Whiting-Turner Contracting Company, et al., Defendants, ECI Contracting, Inc., Defendant-Appellant. [And a Third Party Action]

Raven & Kolbe, LLP, New York (Ryan E. Dempsey of counsel), for appellant.

Laurence M. Savedoff, PLLC, Bronx (Laurence M. Savedoff of counsel), for Norma Ingleton and Wade Samuels, respondents.

Ahmuty, Demers & McManus, Albertson (Nicholas M. Cardascia of counsel), for Brooks Shopping Centers, L.L.C., Macerich Management Company and Macerich Property Management Company, L.L.C., respondents.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered May 14, 2013, which, inter alia, denied the motion of defendant ECI Contracting, Inc. (ECI) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

ECI's motion was properly denied in this action where plaintiff Norma Ingleton alleges that she was injured after falling on a staircase constructed by ECI. Although a contractual obligation does not generally give rise to tort liability in favor of a third party such as plaintiff, a contractor is potentially liable in tort to third persons when the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm (see Espinal v Melville Snow Contrs., 98 NY2d 136, 139-141 [2002]; Powell v HIS Contrs., Inc., 75 AD3d 463, 464 [1st Dept 2010]). Here, ECI failed to proffer sufficient evidence showing that the staircase was properly constructed or inspected in a reasonable and prudent manner prior to the accident (see Prenderville v International Serv. Sys., Inc., 10 AD3d 334, 337-338 [1st Dept [*2]2004]; compare Agosto v 30th Place Holding, LLC, 73 AD3d 492 [1st Dept 2010]).

We have considered ECI's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 6, 2014

CLERK