Summary
finding that Defendant "failed to proffer sufficient evidence showing that the staircase was properly constructed or inspected in a reasonable and prudent manner prior to the accident"
Summary of this case from Penhaskashi v. EQR E. 27th St. Apartments, LLCOpinion
11-06-2014
Norma INGLETON, et al., Plaintiffs–Respondents, v. BROOKS SHOPPING CENTERS, L.L.C., et al., Defendants–Respondents, The Whiting–Turner Contracting Company, et al., Defendants, ECI Contracting, Inc., Defendant–Appellant. [And a Third Party Action].
Raven & Kolbe, LLP, New York (Ryan E. Dempsey of counsel), for appellant. Laurence M. Savedoff, PLLC, Bronx (Laurence M. Savedoff of counsel), for Norma Ingleton and Wade Samuels, respondents. Ahmuty, Demers & McManus, Albertson (Nicholas M. Cardascia of counsel), for Brooks Shopping Centers, L.L.C., Macerich Management Company and Macerich Property Management Company, L.L.C., respondents.
Raven & Kolbe, LLP, New York (Ryan E. Dempsey of counsel), for appellant.
Laurence M. Savedoff, PLLC, Bronx (Laurence M. Savedoff of counsel), for Norma Ingleton and Wade Samuels, respondents.
Ahmuty, Demers & McManus, Albertson (Nicholas M. Cardascia of counsel), for Brooks Shopping Centers, L.L.C., Macerich Management Company and Macerich Property Management Company, L.L.C., respondents.
MAZZARELLI, J.P., ACOSTA, DeGRASSE, CLARK, JJ.
Opinion Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered May 14, 2013, which, inter alia, denied the motion of defendant ECI Contracting, Inc. (ECI) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.
ECI's motion was properly denied in this action where plaintiff Norma Ingleton alleges that she was injured after falling on a staircase constructed by ECI. Although a contractual obligation does not generally give rise to tort liability in favor of a third party such as plaintiff, a contractor is potentially liable in tort to third persons when the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 139–141, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ; Powell v. HIS Contrs., Inc., 75 A.D.3d 463, 464, 905 N.Y.S.2d 161 [1st Dept.2010] ). Here, ECI failed to proffer sufficient evidence showing that the staircase was properly constructed or inspected in a reasonable and prudent manner prior to the accident (see Prenderville v. International Serv. Sys., Inc., 10 A.D.3d 334, 337–338, 781 N.Y.S.2d 110 [1st Dept.2004] ; compare Agosto v. 30th Place Holding, LLC, 73 A.D.3d 492, 901 N.Y.S.2d 593 [1st Dept.2010] ).
We have considered ECI's remaining contentions and find them unavailing.