Opinion
2013-11-15
Cameron E. PARO, Plaintiff, v. PIEDMONT LAND AND CATTLE, LLC, Defendant. Piedmont Land and Cattle, LLC, Third–Party Plaintiff–Appellant, v. W.D. Bach Excavating & Consulting, LLC, Third–Party Defendant–Respondent.
Knych & Whritenour, LLC, Syracuse (Peter W. Knych of Counsel), for Defendant and Third–Party Plaintiff–Appellant. Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Brandon R. King of Counsel), for Third–Party Defendant–Respondent.
Knych & Whritenour, LLC, Syracuse (Peter W. Knych of Counsel), for Defendant and Third–Party Plaintiff–Appellant. Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Brandon R. King of Counsel), for Third–Party Defendant–Respondent.
PRESENT: SMITH, J.P., CENTRA, FAHEY, CARNI, AND WHALEN, JJ.
MEMORANDUM:
Defendant-third-party plaintiff, Piedmont Land and Cattle, LLC (Piedmont), the owner of a parking lot, entered a contract with third-party defendant, W.D. Bach Excavating & Consulting, LLC (Bach), pursuant to which Bach was to raze the structures that had been on the property and to fill in all holes or voids that might exist there. Pursuant to that contract, Bach leveled the buildings and filled in certain holes not relevant herein. Plaintiff commenced this action against Piedmont, seeking damages for injuries that he sustained when his foot fell through a hole in the parking lot and entered a hidden vault below it. Piedmont later commenced a third-party action seeking contribution and common-law indemnification from Bach. Piedmont appeals from an order granting Bach's motion for summary judgment dismissing the third-party complaint. We note at the outset that Piedmont does not challenge that part of the order dismissing the claim for common-law indemnification, and thus it has abandoned any contentions with respect to that claim ( see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984, 609 N.Y.S.2d 745). We agree with Piedmont that the court erred in granting that part of the motion with respect to the claim for contribution, and we therefore modify the order accordingly.
We conclude that Bach met its initial burden on its motion with respect to the claim for contribution by establishing its entitlement to judgment as a matter of law dismissing that claim ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Specifically, Bach established as a matter of law “that the injured plaintiff was not a party to [the] contract ... and that it thus owed no duty of care to the injured plaintiff” (Rudloff v. Woodland Pond Condominium Assn., 109 A.D.3d 810, 811, 971 N.Y.S.2d 170; see Petito v. City of New York, 95 A.D.3d 1095, 1096, 944 N.Y.S.2d 300). In opposition, however, Piedmont raised triable issues of fact to defeat that part of the motion. Although plaintiff was a noncontracting third party with respect to the construction contract between Bach and Piedmont, Bach may still be liable if, “in failing to exercise reasonable care in the performance of its duties, [it] ‘launche[d] a force or instrument of harm’ ” (Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485; see Church v. Callanan Indus., 99 N.Y.2d 104, 111, 752 N.Y.S.2d 254, 782 N.E.2d 50), or otherwise made the area “less safe than before the construction project began” (Timmins v. Tishman Constr. Corp., 9 A.D.3d 62, 67, 777 N.Y.S.2d 458, lv. dismissed4 N.Y.3d 739, 790 N.Y.S.2d 651, 824 N.E.2d 52, rearg. denied 4 N.Y.3d 795, 795 N.Y.S.2d 169, 828 N.E.2d 85). Here, there are issues of fact whether Bach negligently filled in the vault only partially, and concealed its existence, thereby creating a force or instrument of harm or otherwise making the area less safe than before the demolition project began ( see e.g. Schosek v. Amherst Paving, Inc., 11 N.Y.3d 882, 883, 873 N.Y.S.2d 256, 901 N.E.2d 749; Cornell v. 360 W. 51st St. Realty, LLC, 51 A.D.3d 469, 470, 857 N.Y.S.2d 124; cf. Stiver v. Good & Fair Carting & Moving, Inc., 9 N.Y.3d 253, 257–258, 848 N.Y.S.2d 585, 878 N.E.2d 1001).
We have considered Piedmont's remaining contentions, and we conclude that they are without merit or are moot in light of our decision.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying that part of the motion seeking summary judgment dismissing the claim for contribution and reinstating the third-party complaint to that extent, and as modified the order is affirmed without costs.