Opinion
2011-10-25
Michael STEINBERG, et al., Plaintiff–Respondents,v.NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants,Five Star Electric Corp., Defendant–Appellant.
Nicoletti, Hornig & Sweeney, New York (Barbara A. Sheehan of counsel), for appellant.Thomas Torto, New York, for respondents.
Nicoletti, Hornig & Sweeney, New York (Barbara A. Sheehan of counsel), for appellant.Thomas Torto, New York, for respondents.
Order, Supreme Court, New York County (Michael D. Stallman, J.), entered September 23, 2010, which, inter alia, denied defendant Five Star Electric Corp.'s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.
This negligence action arises out of a criminal assault on plaintiff Michael Steinberg as he entered a subway station. Defendant Tareyton Williams allegedly attacked plaintiff with battery-operated reciprocating saws. He obtained the saws from a site where employees of Five Star (defendant) were performing work on the station's public address system.
Five Star does not enjoy governmental immunity. First, Five Star is a private contractor ( see Matter of S.S. Silberblatt, Inc. v. Tax Commn. of State of N.Y., 5 N.Y.2d 635, 641, 186 N.Y.S.2d 646, 159 N.E.2d 195 [1959], cert. denied 361 U.S. 912, 80 S.Ct. 253, 4 L.Ed.2d 183 [1959] ). Second, subway construction is proprietary, not governmental, in character ( see Huerta v. New York City Tr. Auth., 290 A.D.2d 33, 38, 735 N.Y.S.2d 5 [2001], appeal dismissed 98 N.Y.2d 643, 744 N.Y.S.2d 758, 771 N.E.2d 831 [2002]; compare Altro v. Conrail, 130 A.D.2d 612, 613, 515 N.Y.S.2d 540 [1987] [action alleging failure to allocate sufficient resources could not be maintained against MTA or against Conrail, which was performing “an essential governmental function for the MTA”] ). Thus, the doctrine of governmental immunity would not apply in these circumstances.
Supreme Court correctly found that, as movant, defendant failed to show that it did not breach a duty to plaintiff. Defendant relied on hearsay testimony and accident reports submitted without an adequate foundation for their admission as business records ( see Wen Ying Ji v. Rockrose Dev. Corp., 34 A.D.3d 253, 254, 823 N.Y.S.2d 400 [2006]; compare Buckley v. J.A. Jones/GMO, 38 A.D.3d 461, 462–463, 832 N.Y.S.2d 560 [2007] ). In view of the testimony of defendant's foreman that it was necessary to safeguard the tools from theft and that defendant's other employees had seen Williams hovering around them, talking and yelling, it cannot be found as a matter of law that Williams's criminal acts were unforeseeable and therefore a superseding cause of plaintiff's injuries ( see Bell v. Board of Educ. of City of N.Y., 90 N.Y.2d 944, 665 N.Y.S.2d 42, 687 N.E.2d 1325 [1997] ).