Opinion
8970 Index 300823/12
04-11-2019
Humberto RIVERA, Plaintiff–Respondent, v. 11 WEST 42 REALTY INVESTORS, L.L.C., et al., Defendants–Respondents, NTT Services LLC, et al., Defendants, v. Americon Construction, Inc., Defendant–Appellant. 11 West 42 Realty Investors, L.L.C., Third–Party Plaintiff–Respondent, v. Americon Construction, Inc., Third–Party Defendant–Appellant. [And Another Third–Party Action]
Kennedys CMK LLP, New York (Sean T. Burns of counsel), for appellant. Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph, III of counsel), for Humberto Rivera, respondent. Law Office of Lori D. Fishman, Tarrytown (Louis H. Liotti of counsel), for 11 West 42 Realty Investors, L.L.C. and Tishman Speyer Properties, L.P., respondents.
Kennedys CMK LLP, New York (Sean T. Burns of counsel), for appellant.
Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph, III of counsel), for Humberto Rivera, respondent.
Law Office of Lori D. Fishman, Tarrytown (Louis H. Liotti of counsel), for 11 West 42 Realty Investors, L.L.C. and Tishman Speyer Properties, L.P., respondents.
Acosta, P.J., Manzanet–Daniels, Tom, Oing, JJ.
Plaintiff was injured when wooden materials stacked in a freight elevator fell over and struck him. At the time, Americon had been retained by the building owner to perform renovation work in corridors and restrooms on two floors. Contrary to Americon's contention that it owed no duty of care to plaintiff, it can be held liable to plaintiff and others using the freight elevator if its performance of its contractual obligations "create[d] an unreasonable risk of harm to others, or increase[d] that risk" ( Church v. Callanan Indus., 99 N.Y.2d 104, 111, 752 N.Y.S.2d 254, 782 N.E.2d 50 [2002] ; see Powell v. HIS Contrs., Inc., 75 A.D.3d 463, 465, 905 N.Y.S.2d 161 [1st Dept. 2010] ). Furthermore, issues of fact exist as to whether Americon was responsible for the materials that were in the elevator and injured plaintiff (see Arias v. Skyline Windows, Inc., 89 A.D.3d 460, 931 N.Y.S.2d 870 [1st Dept. 2011] ; Prenderville v. International Serv. Sys., Inc., 10 A.D.3d 334, 337–338, 781 N.Y.S.2d 110 [1st Dept. 2004] ).