Opinion
528241
02-20-2020
Vicki JONES, Respondent, v. COUNTY OF CHENANGO, Defendant, and Countryside Stove & Chimney of Oxford, New York, et al., Appellants.
Costello, Cooney & Fearon, PLLC, Camillus (Erin K. Skuce of counsel), for appellants. Law Office of Ronald R. Benjamin, Binghamton (Ronald R. Benjamin of counsel), for respondent.
Costello, Cooney & Fearon, PLLC, Camillus (Erin K. Skuce of counsel), for appellants.
Law Office of Ronald R. Benjamin, Binghamton (Ronald R. Benjamin of counsel), for respondent.
Before: Lynch, J.P., Clark, Devine, Pritzker and Colangelo, JJ.
MEMORANDUM AND ORDER
Devine, J. Appeal from an order of the Supreme Court (Burns, J.), entered November 27, 2018 in Chenango County, which denied a motion by defendants Countryside Stove & Chimney of Oxford, New York and Peter Faber for summary judgment dismissing the complaint against them.
Plaintiff qualified for Home Energy Assistance Program assistance to have a chimney liner installed at her home. Defendant Peter Faber does business as defendant Countryside Stove & Chimney of Oxford, New York (hereinafter Countryside), a program vendor that performed the installation work for plaintiff. Plaintiff did not have a direct contractual relationship with Faber or Countryside (hereinafter collectively referred to as defendants), who performed the work for, and were paid by, defendant County of Chenango (see Social Services Law § 97 ; 18 NYCRR 393.2 ). Plaintiff thereafter commenced this action against defendants and the County, alleging that defendants' work was negligent. Following joinder of issue and discovery, defendants moved for summary judgment dismissing the complaint against them. Supreme Court denied the motion, prompting this appeal by defendants.
Defendants were not entitled to summary judgment dismissing the complaint in its entirety. Defendants were "necessarily required ... to directly perform services at plaintiff's" home to satisfy their contractual obligations, provided those services under a program intended to benefit plaintiff and were required by that program to repair any damage they caused to the home, all of which evinces the clear intent of defendants and the County to make plaintiff the intended third-party beneficiary of their contract ( Finch, Pruyn & Co. v. Wilson Control Servs., 239 A.D.2d 814, 816, 658 N.Y.S.2d 496 [1997] ; see Binghamton Masonic Temple v. City of Binghamton, 213 A.D.2d 742, 745–746, 623 N.Y.S.2d 357 [1995], lv denied 85 N.Y.2d 811, 631 N.Y.S.2d 287, 655 N.E.2d 400 [1995] ). Plaintiff could have therefore asserted a claim for breach of contract, but limited herself to a claim for negligence that will not lie "unless a legal duty independent of the contract itself has been violated" ( Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 389, 521 N.Y.S.2d 653, 516 N.E.2d 190 [1987] ; accord Dormitory Auth. of the State of N.Y. v. Samson Constr. Co., 30 N.Y.3d 704, 711, 70 N.Y.S.3d 893, 94 N.E.3d 456 [2018] ; see 517 Union St. Assoc. LLC v. Town Homes of Union Sq. LLC, 176 A.D.3d 1350, 1351, 111 N.Y.S.3d 715 [2019] ). It must, as a result, be shown that defendants owed a duty of care to plaintiff "spring[ing] from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract" ( Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d at 389, 521 N.Y.S.2d 653, 516 N.E.2d 190 ; accord Kyer v. Ravena–Coeymans–Selkirk Cent. Sch. Dist., 144 A.D.3d 1260, 1261, 41 N.Y.S.3d 584 [2016] ).
In assessing whether such a duty existed, we note that defendants were engaged to install a stainless steel liner in plaintiff's chimney "in a professional manner." Plaintiff alleges that the contracted-for work was done improperly and prevented the adequate venting of furnace exhaust. She also alleges deficiencies beyond that work, however, contending that defendants negligently failed to address visible deterioration of the chimney and surrounding roof that allowed water to infiltrate the home and caused mold growth that damaged both the home and the personalty within it. In response to defendants' motion for summary judgment, plaintiff provided the affidavit of an engineer who opined that the obvious problems with the roof and chimney should have been addressed by defendants while they were repairing adjacent parts of the chimney. It is further notable that the work was paid for by public funds and aimed at helping plaintiff meet her "immediate home energy needs" ( 42 USC § 8621 [a] ), both of which show a "public interest in seeing it performed with reasonable care" ( New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 316, 639 N.Y.S.2d 283, 662 N.E.2d 763 [1995] ; see Dormitory Auth. of the State of N.Y. v. Samson Constr. Co., 30 N.Y.3d at 711, 70 N.Y.S.3d 893, 94 N.E.3d 456 ). Accordingly, after "consider[ing] the nature of the injury, the manner in which the injury occurred and the resulting harm," we conclude that defendants owed plaintiff a duty of reasonable care distinct from their contractual obligations ( Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 552, 583 N.Y.S.2d 957, 593 N.E.2d 1365 [1992] ; see Potter v. Grage, 133 A.D.3d 1248, 1249, 19 N.Y.S.3d 384 [2015] ; Anderson v. Nottingham Vil. Homeowner's Assn., Inc., 37 A.D.3d 1195, 1198, 830 N.Y.S.2d 882 [2007] ).
The opinion offered by plaintiff's engineer was based upon his own inspection of the premises, as well as his review of the affidavit by defendants' expert engineer, and we do not agree with defendants that the opinion was so speculative or lacking in factual foundation that it must be disregarded (see e.g.
With that in mind, although defendants satisfied their initial burden upon their motion for summary judgment, the affidavit of plaintiff's expert and annexed evidence raised material questions of fact as to whether defendants' conduct was negligent and caused damages to plaintiff's home and property (see Philwold LLC v. Inergy LP, 140 A.D.3d 1272, 1274–1275, 32 N.Y.S.3d 721 [2016] ). Inasmuch as plaintiff withdrew any claim of personal injury and "mere observance of the negligently imposed physical damage to her home is insufficient to support her claim of emotional distress," however, Supreme Court should have granted defendants' motion and dismissed the complaint to the extent that damages were demanded for that distress ( Graber v. Bachman, 27 A.D.3d 986, 987–988, 812 N.Y.S.2d 659 [2006] ; see Kenneth S. v. Berkshire Farm Ctr. & Servs. for Youth, 36 A.D.3d 1092, 1094, 829 N.Y.S.2d 715 [2007] ).
Lynch, J.P., Clark, Pritzker and Colangelo, JJ., concur.
ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as denied that part of the motion by defendants Countryside Stove & Chimney of Oxford, New York and Peter Faber seeking dismissal of the claim for emotional distress damages in the first cause of action; motion granted to that extent and said claim dismissed; and, as so modified, affirmed.
Salinas v. World Houseware Producing Co., Ltd., 34 N.Y.3d 925, 926, 109 N.Y.S.3d 213, 132 N.E.3d 1093 [2019] ; Bockelmann v. New Paltz Golf Course, 284 A.D.2d 783, 783–784, 726 N.Y.S.2d 782 [2001], lv denied 97 N.Y.2d 602, 735 N.Y.S.2d 491, 760 N.E.2d 1287 [2001] ).