Berger v. Plumbing

7 Citing cases

  1. Barone v. Nickerson

    2016 N.Y. Slip Op. 5107 (N.Y. App. Div. 2016)   Cited 29 times

    The defendants met this burden and established their prima facie entitlement to judgment as a matter of law by demonstrating that they neither created nor exacerbated the dangerous conditions that allegedly caused the plaintiff to sustain injuries. The parties' deposition testimony established, prima facie, that the defendants did not leave the subject step or the handrail in a condition more dangerous than they had found them (see Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d 253, 257; Church v Callanan Indus., 99 NY2d 104, 112; Berger v NYCO Plumbing & Heating Corp., 127 AD3d 676, 677-678; 492 Kings Realty, LLC v 506 Kings, LLC, 105 AD3d 991; Benavides v 30 Brooklyn, LLC, 96 AD3d at 890; Foster v Herbert Slepoy Corp., 76 AD3d at 215). The plaintiff's contention that the defendants owed him a duty of care to replace the subject step so that the riser heights on the exterior stairway were all uniform, or to replace the handrail, is merely an argument that the defendants failed to become "an instrument for good," which is insufficient to impose a duty of care upon a party not in privity of contract with the injured party (Moch Co. v Rensselaer Water Co., 247 NY 160, 168; see Berger v NYCO Plumbing & Heating Corp., 127 AD3d at 678; Bauerlein v Salvation Army, 74 AD3d 851, 856; Altinma v East 72nd Garage Corp., 54 AD3d 978, 980).

  2. Petersen v. Forest City Ratner Cos.

    203 A.D.3d 1091 (N.Y. App. Div. 2022)   Cited 3 times

    Here, Drywall demonstrated, prima facie, that, although the bracing of the barricade had to be removed and replaced to allow another subcontractor to perform its work, Drywall's installation of the bracing did not create a risk that the barricade would topple or otherwise create or exacerbate a dangerous condition (seeButnik v. Luna Park Hous. Corp., 200 A.D.3d at 995, 158 N.Y.S.3d 240 ). Furthermore, the plaintiffs’ contention that Drywall was negligent in failing to correct the manner in which another subcontractor braced the barricade after removing Drywall's bracing "is merely an argument that [Drywall] failed to become ‘an instrument for good,’ which is insufficient to impose a duty of care upon a party not in privity of contract with the injured party" ( Barone v. Nickerson, 140 A.D.3d 1100, 1102, 32 N.Y.S.3d 663, quoting Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 168, 159 N.E. 896 ; seeBerger v. NYCO Plumbing & Heating Corp., 127 A.D.3d 676, 678, 7 N.Y.S.3d 204 ). The plaintiffs’ remaining contentions are without merit.

  3. Farrugia v. 1440 Broadway Assocs.

    163 A.D.3d 452 (N.Y. App. Div. 2018)   Cited 51 times

    Harbour removed the tank from the pump room as required and was not contractually obligated to take any action with respect to the preexisting floor opening allegedly exposed by its work. In fact, 1440 Broadway never requested that Harbour take any remedial action with respect to the opening in its punch lists or otherwise, and told Harbour that the work would be done by another contractor. Harbour cannot be held liable to plaintiff for a failure to become "an instrument for good," which is insufficient to impose a duty of care upon a party not in privity of contract with the injured party (seeChurch v. Callanan Indus., 99 N.Y.2d 104, 112, 752 N.Y.S.2d 254, 782 N.E.2d 50 [2002] ; Berger v. NYCO Plumbing & Heating Corp., 127 A.D.3d 676, 678, 7 N.Y.S.3d 204 [2nd Dept. 2015] ). Furthermore, as in Rappaport, 127 A.D.3d 430, 431, 6 N.Y.S.3d 250, supra , the opening in the metal plate was visible to 1440 Broadway and it employees.

  4. Farrugia v. 1440 Broadway Assocs.

    157 A.D.3d 565 (N.Y. App. Div. 2018)   Cited 6 times

    Harbour removed the tank from the pump room as required and was not contractually obligated to take any action with respect to the preexisting floor opening allegedly exposed by its work. In fact, 1440 Broadway never requested that Harbour take any remedial action with respect to the opening in its punch lists or otherwise, and told Harbour that the work would be done by another contractor. Harbour cannot be held liable to plaintiff for a failure to become "an instrument for good," which is insufficient to impose a duty of care upon a party not in privity of contract with the injured party (seeChurch v. Callanan Indus., 99 N.Y.2d 104, 112, 752 N.Y.S.2d 254, 782 N.E.2d 50 [2002] ; Berger v. NYCO Plumbing & Heating Corp., 127 A.D.3d 676, 678, 7 N.Y.S.3d 204 [2nd Dept. 2015] ). Furthermore, as in Rappaport, 127 A.D.3d 430, 431, 6 N.Y.S.3d 250, supra , the opening in the metal plate was visible to 1440 Broadway and it employees.

  5. Petersen v. Forest City Ratner Cos.

    2022 N.Y. Slip Op. 2032 (N.Y. Sup. Ct. 2022)

    Here, Drywall demonstrated, prima facie, that, although the bracing of the barricade had to be removed and replaced to allow another subcontractor to perform its work, Drywall's installation of the bracing did not create a risk that the barricade would topple or otherwise create or exacerbate a dangerous condition (see Butnik v Luna Park Hous. Corp., 200 A.D.3d at 995). Furthermore, the plaintiffs' contention that Drywall was negligent in failing to correct the manner in which another subcontractor braced the barricade after removing Drywall's bracing "is merely an argument that [Drywall] failed to become 'an instrument for good,' which is insufficient to impose a duty of care upon a party not in privity of contract with the injured party" (Barone v Nickerson, 140 A.D.3d 1100, 1102, quoting Moch Co. v Rensselaer Water Co., 247 NY 160, 168; see Berger v NYCO Plumbing & Heating Corp., 127 A.D.3d 676, 678).

  6. Cmty. Ass'n Underwriters of Am. v. Advanced Chimney, Inc.

    2021 N.Y. Slip Op. 33482 (N.Y. Sup. Ct. 2021)

    With regard to the first Espinal exception, the Court finds the defendants' evidentiary proof sufficient to establish prima facie that they did not launch a force or instrument of harm. "[A] claim that a contractor exacerbated an existing condition requires some showing that the contractor left the premises in a more dangerous condition than he or she found them" (Berger v NYCO Plumbing & Heating Corp., 127 A.D.3d 676, 677, 7 N.Y.S.3d 204, 206 [2015]). Based on the report of the Nassau County Fire Marshal and the inspections and analyses of the parties' experts, it appears that the fire resulted not from any work performed by the defendants but from the presence of combustible material beneath the fireplace hearth which had been installed years prior to the fire.

  7. Shanahan v. Jim Haywood Real Estate Servs.

    2020 N.Y. Slip Op. 34669 (N.Y. Sup. Ct. 2020)

    The mere clearing or plowing of the snow "cannot be said to have created or exacerbated a dangerous condition" (see Espinal v Melville Snow Contractors, Inc., 98 N.Y.2d 136, 142 [2002]). Additionally, "a claim that a contractor exacerbated an existing condition requires some showing that the contractor left the premises in a more dangerous condition than he or she found them" (Berger v NYCO Plumbing & Heating Corp., 127 A.D.3d 676, 677 [2d Dept 2015]).