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Singh v. Trice Contracting Inc.

Sup Ct, New York County

April 2, 2013

PRAKASH SINGH, Plaintiff,
v.
TRICE CONTRACTING INC., HUANG'S HOLDING. CORP., 180 7TH" AVENUE SOUTH CORP., RANDEE-ELAINE LTD., RANDEE ELAINE SALON, AND JOOI KAUFMAN Defendants. TRICE CONTRACTING, INC., Third-Party Plaintiff,
v.
HARJINDER SINGH, AMAN CONSTRUCTION NY CORP., AND AMAN CONSTRUCTION CORP., Third-Party Defendants. Index No. 109163/2008

Unpublished Opinion

EILEEN A. RAKOWER, Justice.

The following papers, numbered 1 to ______ were read on this motion for/to

PAPERS/NUMBERED

Notice of Motion/ Order to Show Cause — Affidavits — Exhibits .................1

Answer — Affidavits — Exhibits..................2. 3.4. 5. 6. 7

Replying Affidavits......................8

Prakash Singh ("Plaintiff) brings this action to recover for personal injuries he sustained at 180 7th Avenue, New York, NY 10014 on July 10, 2007. Defendant/Third-Party Plaintiff Trice Contracting, Inc. ("Trice"), now moves for summary judgment pursuant to CPLR §3212.

Huang's Holding Corp. ("Huang Holding") is the owner of the premises known as 180 7th Avenue South. Trice was a contractor retained by Huang Holding, to perform brick facade work and roof work on the building. Trice hired Harjinder Singh, a subcontractor, to perform brick work on the exterior of the building. Randee-Elaine Salon is a beauty salon located on the first and second floors of the premises. The owner of the salon is Jodi Kaufman.

Plaintiff was getting a manicure on the second floor of the Randee-Elaine Salon, on July 10, 2007, when he was hit in the head by a wood beam that fell from the ceiling, resulting in serious injuries. The complaint asserts negligence on the part of defendants, their agents, servants and/or employees.

Trice now moves for summary judgment pursuant to CPLR §3212. Plaintiff, Huang Holding, Randee-Elaine Salon and Jodi Kaufman oppose the motion.

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law. That party must produce sufficient evidence in admissible form to eliminate any material issue of fact from the case. Where the proponent makes such a showing, the burden shifts to the party opposing the motion to demonstrate by admissible evidence that a factual issue remains requiring the trier of fact to determine the issue. The affirmation of counsel alone is not sufficient to satisfy this requirement. (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]). In addition, bald, conclusory allegations, even if believable, are not enough. (Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255 [1970]). (Edison Stone Corp. v. 42nd Street Development Corp., U.S. A.D.2d 249, 251-252 [1st Dept. 1989]).

A contractual obligation, standing alone, will not give rise to tort liability in favor of a third party. (See, Espinal v. Melville Snow Constrs., 98 N.Y.2d 136, 773 N.E.2d 485, 746 N.Y.S.2d 120 [2002]). However, one exception is where the contractor "launches a force or instrument of harm", thereby creating an unreasonable risk of harm to others, or exacerbating that risk. (Espinal v. Melville Snow Constrs, 98 N.Y.2d 136, 773 N.E.2d 485, 746 N.Y.S.2d 120 [2002P; Church v. Callanan Industries, Inc., 99 N.Y.2d 104 [2002]).

Here, the parties claim that Trice is liable on the basis that Trice caused or created the condition alleged to have caused the injury. Specifically, the parties contend the falling wood that struck Plaintiff on July 10, 2007 was caused by the work done by ...


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