Wangyal v Robrose Place, L.L.C.

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Wangyal v Robrose Place, L.L.C. 2018 NY Slip Op 32152(U) September 4, 2018 Supreme Court, Kings County Docket Number: 507954/13 Judge: Debra Silber Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] KINGS COUNTY CLERK 09/04/2018 01:42 PM INDEX NO. 507954/2013 NYSCEF DOC. NO. 158 RECEIVED NYSCEF: 09/04/2018 At an !AS Term, Part 9 of the Supreme Court of the State of New York, held in aod for the County of Kings, at tl1e Courthouse, at 360 Adams Street, Brooklyn, New York, on the 4•h day of September, 2018. PRESENT: HON. DEBRA SILBER, Justice. ------------------------------------X TSERING W ANGY AL, DECISION/ORDER Plaintiff, Index No. 507954/13 - against - Motio11 Sequence Nos. 7, 8 ROBROSE PLACE, L.L.C., SKY MANAGEMENT CORP. and DAFFODIL GENERAL CONTRACTrNG, INC., Defe11dants. - -- - -- - -- - - -- - - - - - - - - - - - - - -" - --- - -- -X Tl1e following papers number 1 to 15 read herein: Papers Numbered Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (AffirmationS) Annexed, _ _ _ _ _ _ _ __ 1-2 3-4 Opposing Affidavits (Affirmations), _ _ _ _ _ _ _ __ 5 6. 7-9.10 11 Reply Affidavits (Affirmations). _ _ _ _ _ _ _ _ __ 12131415 Upon the foregoing papers, defendant Daffodil General Contracting, Inc. (Daffodil) inoves for an order, pursuant to CPLR 3212, granting it sumrnary judgment dis1nissing the plaintiffs entire co1nplaint as a.sserted against it. PlaintiffWangyal also inoves for an order, pursuant to CPLR 3212, granting him partial summary judgment on the issue of liability against defendants Daffodil, Robrose Place, LLC and Sky Management Corp. 1 1 Robrose Place L.L.C. owns the subject premises, and Sky Management Corp. was hired to 1nanage the property. Tl1ese two firn1s are united in· interest for the purposes of this action, and 1 of 16 [*FILED: 2] KINGS COUNTY CLERK 09/04/2018 01:42 PM NYSCEF DOC. NO. 158 INDEX NO. 507954/2013 RECEIVED NYSCEF: 09/04/2018 Background The pleadings indicate that, on June 15, 2013, (a Saturday) plaintiff was a laundry delivery person hired by non-party Brown Bag Laundry. On that date, plaintiffs assigned tasks included picking up a bag of clothes to be cleaned from a resident of unit 4 of the residential building located at 220 Sullivan Street' in Manhattan. Plaintiff entered the courtyard of the building by opening and walking through a cast-iron hinged swinging gate. He then walked to the applicable unit's door and picked up the bag of laundry. He then proceeded to exit through the courtyard; he opened the gate, walked through it, and after the gate swung closed behind him, the gate (including the frame around it) tipped forward and struck plaintiff in the back. He suffered injuries as a result. Plaintiffcommenced the instant action by electronicall)1 filing a su1n1nons and verified complaint on December 13, 2013. As defendants, plaintiff named the owners, and Daffodil, a contractor hired by the owners to perfor1n exterior facade '\\'Ork (to re-surface the facade) on the 220 and 224 Sullivan Street properties. The complaint asserts that the subject gate \Vas unsecured, and tl1us constituted a hazardous pre1nises condition. Plaintifffurther alleges that defendants were negligent in their responsibilities with respe_ct to the gate, either by creating the hazard (i.e. causing the hea\')' gate to beco1ne unsecured) or knowing of the this court will refer to the111 together as "the- owners." 1 Plaintiffs submissions to this court sometimes refer to 224 Sullivan Street; the submissio11s suggest that both 220 and 224 SulliVan Street share a common courtyard, which, apparently, necessitated tl1e use of the subject gate. In any event, Ro brose Place L.L.C. appears to own botl1 buildings. 2 2 of 16 [*FILED: 3] KINGS COUNTY CLERK 09/04/2018 01:42 PM NYSCEF DOC. NO. 158 INDEX NO. 507954/2013 RECEIVED NYSCEF: 09/04/2018 hazard and failing to correct it. 3 Plaintiff claims that such negligence proximately caused his injuries, and he seeks damages as a result. Defendants interposed answers, and discovery ensued. On December 15, 2016, plaintiff filed a note of issue, indicating that t11e action is ready· for trial. The instant motions for summalJ' judgment ensued. Arguments in Support ofPlaintiff's Motion In support of his motion, plaintiff first argues that the ov.rners owe those lawfull)r present on their land a duty to keep the pre1nises reasonably safe. PlaintitI asserts that as a delivery person for a laundry service hired by one of the O\vners' tenants, he \Vas owed such a duty. Plaintiff adds that the subject gate was in the owners' exclusive control and notes that it is undisputed that he "'·as injured \.Vhen tl1e gate suddenly fell on him. Therefore, plaintiff infers that the owners or their agents had created the s11bject gate's-hazardous condition \Vhen the accident occurred. Plaintiff also imputes responsibility for the accident to Daffodil. Specifically, plaintiff claims that a written agreement betvveen the o\vners and a consulting architect provides that Daffodil was to re1nove the iron gates in ·order to perform the facade work, and to put the1n back in place after the re-surfacing \"Vas completed. Accordingly, plaintiff alleges that a proper inference is that Da±10dil's \Vt)rkers caused the gate to become unstable and fall. 3 Plaintiff had also asserted causes of action alleging violations of the Labor Law; these claims were later witl1drawn by stipulation. Also, plaintiff alleges a violation of section 78 oftl1e Multiple Dwelling Law; tl1e court notes that the standru·d of care co11tained tl1erein-requiring that t11e owner and its agents shall keep all parts of a multiple dwelling "in good repair"--does not deviate materially from the common-law pren1ises liability duty of care. 3 3 of 16 [*FILED: 4] KINGS COUNTY CLERK 09/04/2018 01:42 PM NYSCEF DOC. NO. 158 INDEX NO. 507954/2013 RECEIVED NYSCEF: 09/04/2018 Thus, plaintiff reasons, Daffodil is responsible for creating the premises hazard. Plaintiff concludes that, therefore, Daffodil is liable for his injuries. In sum, plaintiff asserts that the record sttffices for this court to grant him partial summary judgment on the issue of liability. Plaintiff notes that his account of the subject accident is uncontradicted; plaintiff adds that defendants' deposition witnesses lacked any direct knowledge of relevant events. He continues that it is undisputed that the gate was unsecured and that it fell, struck him and caused injuries. For these reasons, plaintiff concludes that he has de1nonstrated prima facie entitle1nent to judg1nent as a matter of law, and this court should thus grant his motion. 4 Arguments in Support of Daffodil's Motion In support of its motion, Daffodil first contends that the record demonstrates plaintiffs inabilit)' to establish a pritna facie case of negligence against it. Daffodil points out that no negligence cause of action is sustainable against a party that did not owe the plaintiff a duty of care. Next, Daffodil asserts that since it does not O\Vn the-subject premises, it thus did not owe plaintiff the duty of care associated \Vi th premises liability. Dat1odil notes that it is a contractor hired by the owner to perform construction or renovation work on the premises, and that plaintiff \Vas a third-part)" pedestrian or licensee with respect to that relationship. 4 Plaintiff submits his affida\'it, \Vhich avers facts substantially in accordance with his attorney's arguments. 4 4 of 16 [*FILED: 5] KINGS COUNTY CLERK 09/04/2018 01:42 PM NYSCEF DOC. NO. 158 INDEX NO. 507954/2013 RECEIVED NYSCEF: 09/04/2018 As a contractor, Daffodil continues, it only owes licensees (such as plaintiff herein) a duty of care in certain well-defined circumstances. Daffodil asserts that there are only three such instances: vvhen a contractor launches a force of harm, when the third-party relied upon the contractor's perfor1nance, and \vhen the contractor alo11e 1naintains the safety of the premises. Daffodil clai1ns that none of these are applicable here. First, Daffodil contends that it did not launch a force of harm. Daffodil claims that it neither installed nor reinstalled the subject gate. Next, Daffodil claims that the record contains no indication that plaintiff relied on (or even was aware of) the quality of the \Vork performed by Daffodil. Third, Daffodil notes that the record suggests that the agents of the property owners would frequently inspect the subject site d11ring the project; Daffodil reasons that, therefbre, the O\Vners nev'er relinquished the duty to maintain a safe pre1nises. For these reasons,Daffodil concludes that, as a construction contractor, it never owed plaintiifa duty of care, and, consequently, is not liable for plaintiffs it1juries. Alternatively·, Daffodil continues, plai11tiffs clai1ns against it fail even when applied to common pre1nises liability doctrines. Daffodil notes that, according to general principles of premises liability, a defendant is subject to liability only when it either created a hazardous premises condition or had notice thereof. Daffodil points out that it only performed masonry work on the facade of the s11bject building; Daffodil maintains that it never removed the subject gate. Daffodil reas<)TIS that its agents thus had no kno\vledge of any: dangerous condition concerning the gate. MoreO\'er. continues Daffodil, the record indicates that there was no discernable hazard regarding the gate; Daffodil highlights that plaintiffs own 5 5 of 16 [*FILED: 6] KINGS COUNTY CLERK 09/04/2018 01:42 PM NYSCEF DOC. NO. 158 INDEX NO. 507954/2013 RECEIVED NYSCEF: 09/04/2018 testimony establishes that he did not see any danger when he entered the building a few minutes before the accident. For these reasons. Daffodil concludes that the record establishes that Daffodil neither created nor had notice of any hazardous condition with respect to the subject gate. Accordingl)', argues Daffodil, this court sl1ould grant its 1notion for summary judgment dismissing all claims against it. Daffodil's Arguments in Opposition lo Plaintiff's Motion In opposition to plaintiffs motion for summary judgment, Daffodil first asserts that plaintiffhas not established a prima facie case ofnegligence against it. Specifically, Daffodil points out that before a defendant may be held liable for negligence, the plaintiff must first establish that the defendant breached a duty of care owed to the plaintiff. Here, Daffodil continues, plainti_ff cannot establish either the duty owed or the breach thereof. Daffodil claims that it is undisputed that it had no ownership interest in the subject premises. Therefore, reasons Daffodil, it did not owe plaintiff the duty of care typically ovved by lando\vners to those on the premises. Additionally, contirtues Daffodil, plaintiff cannot show that Daffodil either removed or re-installed the subject gate. Daffodil notes that plaintiff alleges that the gate\.vas dangerously· unsecured; hovvever, adds Daffodil, the record lacks a11y indication that the gate '''aS unsecured because of Daffodil's vvork. Moreo·ver, states Daffodil, the subject work would not have necessitated removal of the gate. In short, Daffodil argues that plaintiff's evidence does not establish that Datiodil either re1noved or re-installed the gate (or, did so in a negligent fashion). 6 6 of 16 [*FILED: 7] KINGS COUNTY CLERK 09/04/2018 01:42 PM NYSCEF DOC. NO. 158 INDEX NO. 507954/2013 RECEIVED NYSCEF: 09/04/2018 Daffodil reiterates that the record does not show that plaintiff relied on the quality of Daffodil's work pursuant to its contract with the owners. Finally, Daffodil points out that the record shows that the O\vners' agents reg11larly inspected the pre1nises, thus negating any claim that Daffodil alone undertook the duty to keep the premises safe. Daffodil concludes that the record does not establish that Daffodil either owed a duty to plaintiff or breached such a duty, and, accordingly, this court should deny plaintiffs motion for summary judgment. Owners' Argu1ne11ts in Oppositio11 to Daffodil's Motio11 In opposition to Daffodil's 111otion, the o\vners assert that issues of material _fact as to Daffodil's liability preclude summary judgment. Specifically. the owners state that the record does not establish that Daffodil did not re111ove or re-install the subject gate. The owners acknowledge that Daffodil's deposition witness testified as such; however, the O\yners continue, that witness was not ffequently present at the subject pre1nises and had little first-hand knowledge of what work was performed by Daffodil employees. In contrast, the owners add, their deposition witness (their property 1nanager) testified that, the subject gate was removed by Daffodil's employees. Furtl1er, the owners continue, theirpropertytnanager - unlike Daffodil's deposition witness - was in fact on the premises overseeing the work on most days and thus would ha\'e actual k110\vledge of\vl1ich workers perfonned \Vhich work. The owners also submit two affidavits of persons (who \Vere either also present on the site or knev.,r the job requirements) whose state111ents are consistent \Vith the testimony of the O\Vners' propert)' manager. For tl1ese reasons, tl1e owners conclude that Daffodil has failed 7 7 of 16 [*FILED: 8] KINGS COUNTY CLERK 09/04/2018 01:42 PM NYSCEF DOC. NO. 158 INDEX NO. 507954/2013 RECEIVED NYSCEF: 09/04/2018 to demonstrate the absence of any issue of fact as to their potential liability. Accordingly, the owners argue that this court should deny' Daffodil's motion for su1nmar)1 judgment. Owners' Argume11ts i11 Oppositio11 to Plai11tifj's Motio11 In opposition to plaintiff's t11otion, the owners first cite the general principles of premises liability. Specifically, the owners claim, in order for plaintiff to succeed, plaintiff must show both that the subject gate was a hazardous condition and that the owners either created the dangerous condition or 11ad notice (actual or constructive) of it. Here, the owners argue, plaintiff has not shown that they caused the gate to become dangerous nor that they kne\v that it \\'as. First, the O\vners assert that the record contains no proof that they· created the subject condition. The owners point out that their witnesses and aftiants all aver tl1at only DatTodil performed work on the subject gate. Specifically, the owners continue, Daffodil employees removed the gate during the facade work. Although Daffodil disputes this, the owners state that, nevertheless, the record does not link them to any work performed on the gate. Tl1e owners then turn to the issue of notice. Specifically, the owners argue that if plaintiff cannot sho\v that the owners' e1nployees perfor1ned \\'Ork on the subject gate, pre1nises liability is possible only if plaintiff demonstrates that the O\\'ners had notice of a defect in the gate. The record, tl1e O\vners continue,- has ho indication of notice. First, the owners state that the record contains no suggestion that their emplo)'ees received actual complaints. Next, the owners point l)Ut that for constructive notice to exist, a defect 1nust be apparent for an arnount of ti1ne sufficient for their agents to correct it. H-ere, contend the 8 8 of 16 [*FILED: 9] KINGS COUNTY CLERK 09/04/2018 01:42 PM NYSCEF DOC. NO. 158 INDEX NO. 507954/2013 RECEIVED NYSCEF: 09/04/2018 owners, the record belies any suggestion of co11structive t1otice. Indeed, the owners continue, the record suggests that any damage or change to the gate's condition was done the day before the accident, implying that the building residents used the gate during the morning of plaintiff·s accident and tl1e previous evening \Vitl1out incident. The o\vners ·further point out plaintiffs deposition testimony, in which he states that he used the gate to enter the premises but noticed nothing wrong with it. Lastly, the owners note that plaintiff also testified that he noticed nothing wrong with the gate as he opened it to exit the premises; it was only after he exited that the subject gate fell and struck him. Based on this record, the owners conclude that there is no evidence that their employees create_d the hazardous condition and maintain that there is no evidence that their e1nployees received actual notice l)f it. I~ast1)', the O\Vners point out that the record contains no suggestion that any defect in the subject gate was apparent for any appreciable amount of time. For these reasons, the O\vners argue that this court should deny plaintiffs motion for su1nmary judgment. Plaintiff's Arguments Against Daffodil's Motion Plaintiff also opposes Daffodil's 1notion. Plaintiff reiterates his argument that he is entitled to partial summary judgment on the issue ofliability against all defendants; plaintiff clai1ns tha_t onl)' tl1e issue of apportionment of liahilit)' by· the trier of fact remains. Nevertheless, plaintiff addresses o·affodil's contentions. Specifically, plaintiff asserts that, contrary to Daffodil's arguments, Daffodil is properly held liable either as an agent of the landowner or as an entitythat created the subject 9 9 of 16 [*FILED: 10] KINGS COUNTY CLERK 09/04/2018 01:42 PM NYSCEF DOC. NO. 158 premises hazard. INDEX NO. 507954/2013 RECEIVED NYSCEF: 09/04/2018 Plaintiff additionally claims that Daffodil at least had notice of the dangerously unsecured gate. Moreover, plaintiff adds that the subject gate violated several health and safety codes relating to entrances of buildings under construction or renov·ation. 5 Also, plaintiff notes defendants' apparent failure to identify any worker who actually either removed or reinstalled the subject gate. Plaintiff suggests defendants have cynically manipulated the discovery process, given that there is no dispute that the subject gate was unsecured. Instead, plaintiff continues, eacl1 defendant accuses the other ofbeingresponsible for the 1naintenance and safety of the gate. Plaintiff maintains that defendants' passing of blame is irrelevant, since he argues tl1at each defendant is jointly a11d severally liable for the condition of the gate. F'urthennore, plaintiff suggests that because of the subject renovation project, no entity other than the defendants would reasonably have removed and/or reinstalled the subject gate; the logical conclusion, according to plaintiff, is that the e1nployees of at least one of the defendants created the subject hazard. 6 'fhus, reasons plaintiff, Daffodil, despite its protestations, is nevertheless subject to liabilit)' in this action. 5 Plaintiff sub1nits the atTidavit of an engineer who concludes substantially the same. 6 'fhe court i1otes that the public internet \Vebsite of the New Yorl( City Department of Buildings indicates that the o\vner's architect filed plans ii1 December 2012 with regard to exterior work, and that on June 18. 2013, three days after plaintiff's accident, a caller complained that there were -v.rorkers on the scaffold on tl1erear of the buildi11g who vvere \Vorking without safety harnesses. Tl1is creates an inference that Daffodil •·s work vvas still in progress on tl1e Saturday morning that plaintiff had his accident. 10 10 of 16 [*FILED: 11] KINGS COUNTY CLERK 09/04/2018 01:42 PM NYSCEF DOC. NO. 158 INDEX NO. 507954/2013 RECEIVED NYSCEF: 09/04/2018 Discussion Summary judg1nent is a drastic re1nedy that deprives a litigant of his or her da:y in court and should thus only be employed when there is no doubt as to the absence of triable issues of material fact (Kolivas v Kirchoff, 14 AD3d 493 [2d Dept 2005]; see also Andre v Pomeroy, 35 NY2d 361, 364 [1974]). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Manicone Y' City ofNew York, 75 AD3d 535, 537 [2d Dept 2010], quoting Alvarez v Prospect Hosp .. 68 NY2d 320, 324 [1986]; see also Winegradv New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957], rearg denied 3 NY2d 941 [1957]). The inotion should be granted only \Vhen it is clear that no 1naterial and triable issue of' fact is presented (Di Menna & Sons v City o(New York, 30 l NY 118 [1950]). Moreover, a party seeking summary judg1nent has the burden of establishing prima facie entitlement to judgment as a 1natter of la\v by affirmatively de1nonstrating the merit of a claim or defense and not by simply pointing to gaps in the proof of a11 opponent (Nationivide Prop. c~as. v Nestor, 6 AD3d 409, 410 [2d Dept2004]; Katzv PRO Form Fitness, 3 AD3d 474, 475 [2d Dept 2004]; Kucera v Wa/dbaums Supermarkets, 304 AD2d 531, 532 [2d Dept 2003]). If a 1novant fails to do so, sUin1naI')' judg1nent should be denied \\'ithout reviewing the sufficiency of the opposition papers (Derise vJaak 773, Inc., !27 AD3d !011. 10!2 [2d Dept 2015], citing Winegrad, 64 NY2d 85 I). 11 11 of 16 [*FILED: 12] KINGS COUNTY CLERK 09/04/2018 01:42 PM NYSCEF DOC. NO. 158 INDEX NO. 507954/2013 RECEIVED NYSCEF: 09/04/2018 If a movant meets the initial burden, parties opposing the motion for summary judgment must demonstrate evidentiar)' proof sufficie11t to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324, citing Zuckerman, 49 NY2d at 562), Parties opposing a motion for summary judgment are entitled to "every favorable inference from the parties' submissions" (Sayed v Aviles, 72 AD3d J 061, 1062 [2d Dept 201 O]; see also Nicklas v Ted/en Realty Corp,, 305 AD2d 385 [2d Dept 2003]; Akseizer v Kramer, 265 AD2d 356 [2d Dept 1999]; McLaughlinv Thaima Realty Cmp,, 161 AD2d 383, 384 [1st Dept 1990]; Gibson v American Export Isbrandtsen Lines, 125 AD2d 65, 74 [1st Dept 1987]; Strychalski v Mekus, 54 AD2d 1068, 1069 [4th Dept 1976]), lndeed, in deciding a motion for summary judg1nent, the court is required to accept the opponents' contentions as true and resolve all inferences in the manner most favorable to opponents (Pierre-Louis v DeL011ghi America, Inc,, 66 AD3d 859, 862 [2d Dept 2009], citing Nick/as, 305 AD2d at 385; Henderson v City ofNew York, 178 AD2d 129, 130 fist Dept 1991 ]; see also Fundamental Por!folioAdvisors, Inc, v Tocqueville Asset Mgt,, LP,, 7 Ny3d 96, 105-106 [2006]), Furthermore, "[i]n all but the most extraordinary instances, whether a defendant has confor1ned to the standard of' conduct required by law is a question of fact necessitating a trial" (St. A11drew v 0 'Brien, 45 AD3d 1024, 1028 [3d Dept 2007] [internal quotations omitted]; see also Ferrer v Harris, 55 NY2d 285, 291-292 [1982]; Andre, 35 NY2d at 364; Nandy v Albany Med Ctr, Hosp., 155 AD2d 833, 833 [3d Dept 1989];Kiernan v Hendrick, 116 AD2d 779, 781 [3d Dept 1986]), Lastly·, "'[a] motion for sum111al)· judg1nent 'should not be granted \Vhere the facts are in dispute, where conflicting inferences inay be drawn fro1n the e\ridence, or where there are 12 12 of 16 [*FILED: 13] KINGS COUNTY CLERK 09/04/2018 01:42 PM NYSCEF DOC. NO. 158 INDEX NO. 507954/2013 RECEIVED NYSCEF: 09/04/2018 issues of credibility'" (Ruiz v Gr//fln, 71 AD3d 1112, 1112 [2d Dept 201 OJ, quoting Scott v Long Is. Power Auth.. 294AD2d 348 [2d Dept 2002]; see also Benetatos v Comerford, 78 AD3d 750, 751-752 [2d Dept 2010]; Lopez v Beltre, 59 AD3d 683, 685 [2d Dept 2009]; Baker v D.J Stapleton, Inc., 43 AD3d 839 [2d Dept 2007]). The court finds that Daffodil's motion must be denied. The elements of a negligence cause of action are "(1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom" (Abbott v Johnson, 152 AD:ld 730, 732 [2d Dept 2017], quoting Solomon v City ofNew York, 66 NY2d I 026, 1027 [ 1985]). A duty of reasonable care O\Ved to a plaintiff is a requisite part of the cause of action (see e.g. Fox v Marshall, 88 AD3d l3 l [2d Dept 20l l]). Absent a duty of care, there is no breach, and therefore, no liability (id. at 135; see also Gord.on v Jvfuchnick, 180 AD2d 715 [2d Dept 1992]). Daffodil correctly points out that since it has no interest in the subject pre1nises, it is thus not subject to premises liability under the same standard as that for owners (cf Davis v Rochdale Vil.. Inc., 63 AD3d 870, 870-871 [2009] [liability exists when the owner "either created the condition or 11ad actual or constructive i1otice of it and failed to remedy it within a reasonable time"], citing Gord.on v Americal1 Mus. o(Nat. Hist., 67 NY2d 836 (1986] and Moody v Woolworth Co., 288 AD2d 446 [2d Dept 2001]). Moreover, and "[a]s a general rule, a party who enters into a contract to render services does not asst1me a duty of care to third parties outside the contract'' (Dugan v. Crown Broadway, LLC, 33 AD3d 656 (2d Dept 2006]). Ho\\1ever, as a contractor perfor1ning 1nasonry \Vork on the premises, it is subject to 13 13 of 16 [*FILED: 14] KINGS COUNTY CLERK 09/04/2018 01:42 PM NYSCEF DOC. NO. 158 INDEX NO. 507954/2013 RECEIVED NYSCEF: 09/04/2018 liability if it "fail[ ed] to exercise reasonable care in the performance of [its] duties [and] launche[d] a force or instrument ofhann'' (Espinal v Melville Snow Contrs., 98 NY2d 136, 141 [2002]). Here_, an issue of fact exists as to \Vhether Daffodil failed to adequately· remove and/or reinstall the subject gate. To be clear, Datiodil' s sub1nissions indicate that it neither removed nor reinstalled the gate. However, the record contains sworn statements stating that Daffodil could not have perfo11ned the t'acade work witl1out re1noving the gate, and that only Daffodil's e1nplo)1ees \:\/OU!d have removed a11d reinstalled the gate. Naturall)', if the latter statements are believed, Daffodil would be liable for "launch[ing] a force or instrument of hann," namely, the heavy gate that fell on plaintiff (id.). Since this court cannot determine issues ot· credibility in the course of deterrnining su1nmary judg1nent tnotions (Forrest v Jewish Guild/or the Blind, 3 NY3d 295, 314-315 [2004] ["(c)redibility determinations, the weighing of the evidence, and the drawing of legiti1nate inferences fro1n the facts are jury ft1nctions, not tl1ose of a judge ... on a inotion for su1n1nary judgment"], quotingA11derson v Liberty Lobby, Inc .. 477 US 242, 255 [1986]; see also Scott v Long Is. Power Auth., 294 AD2d 348 [2002]), Daffodil's motion must be denied. 7 Turning to plaintiff's inotion, this court cannot a\\'ard plaintiff su1n1nary judgment on the issue of liabilit)' against def'endants. Plaintiff contends that de,i'endants are jointly and severally· liable; this argtnnent lacks inerit, however, because joint and several liabilit)' occurs when ''two or 1nore tort-teasors act conct1rre11tly or in concert to produce a single injury" 7 Daffodil did not raise sttbstantial argu1ne11ts concemi11g any cross clai1ns or the issue of indemnification in its sub1nissio11s. 14 14 of 16 [*FILED: 15] KINGS COUNTY CLERK 09/04/2018 01:42 PM NYSCEF DOC. NO. 158 INDEX NO. 507954/2013 RECEIVED NYSCEF: 09/04/2018 (Ravo v Rogatnick, 70 NY2d 305, 309-310 [1987], citing Suria v Shiffinan, 67 NY2d 87 [1986]; Bichler v Lilly & Co., 55 NY2d 571 [1982]; Derby v Prewitt, 12 NY2d 100, 105 [1962]; Sweetv Perkins, 196 NY 482, 485 [1909]). Contrary to plaintiffs arguments, and based upon the instant record.. this court ca1111ot find, as a n1atter of law, that the O\vners and Daffodil acted "concurrently or in concert" with respect to the hazardous unsecured gate (Ravo, 70 NY2d at 309). To the contrary, the record contains sworn statements assetiingthat Daffodil did not ca11se the .gate t<) beco1ne l1azardous, which contradict other sworn statements which assert that only Daffodil could have caused the gate to pose a danger to passersby. The trier of fact 111ay find that all defendants acted in concert; then again, it may not. For this reason, plaintitT is 1101 .entitled to partial su1111nary judg1nent on the issue of liability against all defendants. Ho\vever, plaintiffs 111otion is granted- to the extent that this court finds that there is no issue of plaintiffs co1nparative negligence to be sub1nitted to the trier of fact. The record unequi\'ocally establishes that plaintiffpla:yed no part in causing his O\vn injuries. In other words, plaintiff has demonstrated that the breach of a dut)' of' care owed to hitn proximately caused his injuries; the issue to be deter1nined is \vhich defendant[s], if any, committed the breach and are thus liable to plaintiff for their 11egligence. Accordingly, it _is ORDERED that tl1e 1notion t)f defendant Da±Todil General Contracting, Inc. for sum1nary judgment dis1nissi11g the co111plaint ofplaintiffTsering Wangyal is denied; and it is further 15 15 of 16 [*FILED: 16] KINGS COUNTY CLERK 09/04/2018 01:42 PM NYSCEF DOC. NO. 158 INDEX NO. 507954/2013 RECEIVED NYSCEF: 09/04/2018 ORDERED that the motion of plaintiff Tsering Wangyal for partial summary judgment against defendants Robrose Place. LLC, Sky Management Corp. and Daffodil Geneial Contracting, Inc. on the issue of liabilit)· is granted solely to the extent of resolving the issue of comparative negligence as a matter of law in favor of plaintiff, and is otherwise denied. The foregoing constitutes the decision and order of the court ENTER, Hon. Debra Silber, J.S.C. Hon. Dellrill Silber Justice Supreme court 16 16 of 16

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