Opinion
SCNY 4772/07.
Decided March 26, 2008.
Leonid Gerinshteyn, pro se, Sacco Fillas, LLP, Attorneys for defendant, White Stone, NY, By: Andrew Wiese, Esq.
Claimant brings this Small Claims action to recover $969.11 for damages caused to his automobile on August 18, 2007 as a result of the negligence of the defendant.
Defendant is the owner of the former Deutsche Bank building (hereinafter the "building"). On August 18, 2007 Claimant parked his 2005 Toyota Camry LE automobile on Greenwich street near the building. When he returned to retrieve his vehicle later in the day he found the street closed by the New York City Police and Fire Departments, the building was on fire. Claimant was not allowed access to the street, and his vehicle, until the following day when he discovered that his vehicle had been damaged, he believes, as a result of the fire. The vehicle sustained a cracked windshield, chipped paint and scratches. Although claimant didn't see how the damage occurred he stated he believes the vehicle was struck by debris falling from the building.
On cross examination claimant stated that he saw debris on the ground near his vehicle. This debris consisted of synthetic material and pieces of wood, possibly from the scaffolding. Claimant does not know the cause of the fire or how defendant was negligent in causing damage to his vehicle. He sues defendant because it is the owner of the building. Claimant had the vehicle inspected by his insurance company, Geico, which paid for the damage minus a $500.00 deductible. He also had to rent an automobile for which he paid $469.11 [See claimant's 1, 2, 3 4 in evidence]. Now he seeks to collect expenses incurred in the amount of $969.11 from the defendant for the deductible and the rented vehicle. Claimant produced photographs of the vehicle at the scene of the fire. The photographs depict damage to the vehicle's windshield and paint, but most importantly they depict a clean street (no debris near the vehicle) an intact scaffold and intact netting over the entire facade of the building.
Defendant produced one witness, Ms. Weixel, an attorney employed by it as an assistant general counsel. Ms. Weixel admitted that defendant owns the building, but that it had contracted with Bovis Land Lease LMB, Inc., (hereinafter "Bovis), for the cleaning and deconstruction of the building [see Contract defendant's A]. On the day of the fire there were no employees from defendant on the premises. The only employees in the building were those of Bovis and its sub-contractors. Defendant had also taken precautions to prevent any falling debris from striking persons or property in the street, by erecting a scaffold covering the sidewalk, and hanging netting over the building's facade. Defendant alleges it is not liable to Claimant, who should seek compensation for its damages from Bovis and its sub-contractors.
LEGAL ANALYSIS
Ordinarily, a landowner who engages in activities that may cause injury to persons on adjoining property or the street owes those persons a duty to take reasonable precautions to avoid injuring them or their property (532 Madison Avenue Gourmet Foods, Inc., v. Finlandia Center Inc., 96 NY2d 280, 750 NE2d 1097, 727 NY S. 2d 49; Quoting, Weitzman v. Barber Asphalt Co., 190 NY 452, 83 N.E. 477; Hughes v. Harbor Suburban Building Savings Assn., et al., 131 A.D. 85, 115 N.Y.S. 320 [2nd Dept. 1909])). The erection of a scaffold to protect those persons on the sidewalk, and the spreading of netting over the building's facade are the types of reasonable precautions contemplated by the rule.
In order to prevail in this negligence case claimant must show that defendant owed him a duty of care, that it breached that duty, and that the breach of that duty is the proximate cause of claimant's damages. Under this common law rule defendant, as property owner, would be liable to the claimant for the damages to his automobile, caused by its acts or the acts of its employees. This rule has evolved over the years and the courts have carved out certain exceptions to it.
One exception relieves an owner of property from liability when he engages an independent contractor to do work upon the property (Bologna v. Battisto, 36 Misc 2d 297, 235 NYS2d 819 [ NY Co. Ct. Albany Ct. 1962], quoting Berg v. Parsons, 156 NY 109, 50 N.E. 957; Schiros v. Tawil, 2003 NY Slip Op 50953(U) [App. Term 2nd. 11th. Jud. Dists., 2003]). However, this exception has its own exceptions. For instance, it does not apply in cases where the owner knows of a dangerous condition created by the independent contractor and fails to correct it (Schwartz v. Merola Bros. Const. Corp., 290 NY 145, 48 NE2d 299 holding property owner liable for injuries caused to minor while on sidewalk from falling bags of pebbles piled on sidewalk, by independent contractor, in front of building being altered.), or where the work to be performed is inherently dangerous and the owner fails to take precautions to protect the public (Hughes v. Harbor Suburban Building Savings Assn., 131 A. D. 85, supra, finding owner responsible for injury caused to a pedestrian struck by a brick falling from damaged building due to acts of an independent contractor), or where the property owner interferes with the work to be performed by the independent contractor, or where the thing to be done is unlawful, or where the acts of the independent contractor constitute a public nuisance (Bologna v. Battisto, 36 Misc 2d 297, Supra; Brooklyn Yarn Dye Co., v. Krauss, 15 Misc 2d 727, 182 N.Y.S. 882 [NY Sup., 1959]; Gilbert Properties Inc., v. City of New York, 33 AD2d 175, 305 NYS2d 650 [1st. Dept. 1969]; Acevedo v. Audubon Management, Inc., 280 AD2d 91, 721 NY S. 2d 332 [ 1st. Dept. 2001]).
The exceptions applicable to the general rule relieving a property owner from liability for the acts of an independent contractor are not present in this case. It is apparent from the facts and the evidence that defendant took reasonable precautions to protect the public by erecting a scaffold on the sidewalk and hanging netting over the building's facade. This prevented any building debris from striking a pedestrian or someone else's property on the street. Defendant did not interfere with the work, of the independent contractor, nor was the deconstruction work unlawful or a public nuisance. Nor can it be said that the deconstruction work is of such a dangerous nature, no matter how skillfully or carefully performed, as to create a non-delegable duty on defendant thereby imputing liability.
The damage caused to Claimant's automobile was not as a result of the deconstruction work, but as a result of a fire in the building. The origin of the fire is unknown and there was no testimony from the claimant or the defendant on this point. Ms. Weixel testified that at the time of the fire there were no employees of the defendant in the building. There is no proof that the fire was caused by the negligence of the defendant, or for that matter, the independent contractor or its subcontractors. Assuming that the fire was caused by the acts of the independent contractor or its subcontractor, the owner cannot be held responsible (See Acevedo v. Audubon Management, Inc., 280 AD2d 91, Supra).
CONCLUSION
Claimant had the burden of proving that the damages to its automobile were caused by the negligence of the defendant. It has failed in its burden and this court has no other recourse but to dismiss this case.
Accordingly, for the foregoing stated reasons the decision and judgment of this court is for the defendant, case is dismissed.
This constitutes the decision and judgment of this court.