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In re Paula D.

Supreme Court of New York, First Department

March 6, 2014

In re Paula D., an Infant over the Age of Fourteen by her Mother and Natural Guardian, Sandra T., et al., Plaintiffs-Respondents-Appellants,
The City of New York,, Defendant-Respondent, Metropolitan Transportation Authority, et al., Defendants-Respondents-Appellants, Steers Construction Corp., Defendant-Appellant-Respondent, M.A. Angeliades, Inc., et al., Defendants. New York City Transit Authority, Third-Party Plaintiff-respondent-appellant, Seaboard Surety Company, Third-Party Defendant-Respondent. Seaboard Surety Company, Second Third-Party Plaintiff-Respondent, Steers Construction Corp., Second Third-Party Defendant- Appellant-Respondent. [And Another Action]

Leahy & Johnson, P.C., New York (Peter James Johnson, Jr. of counsel), for appellant-respondent.

Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for Paula D. and Sandra T., respondents-appellants.

Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Joel M. Simon of counsel), for Metropolitan Transportation Authority and New York City Transit Authority, respondents-appellants.

Mauro Lilling Naparty LLP, Woodbury (Anthony F. DeStefano of counsel), for L.A. Wenger Contracting Company, Inc. and Matrix Construction Corp., respondents-appellants.

Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), for municipal respondent.

Wolff & Samson PC, New York (Adam P. Friedman of counsel), for Seaboard Surety Company, respondent.

Saxe, J.P., Moskowitz, DeGrasse, Clark, JJ.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered May 17, 2012, which, to the extent appealed from as limited by the briefs, denied the respective motions and cross motions of defendants L.A. Wenger Contracting Inc./Matrix Construction Corp. (Wenger), Steers Construction Corp. (Steers), and Metropolitan Transportation Authority and New York City Transit Authority (collectively NYCTA) for summary judgment dismissing the complaint and cross claims as against them, granted the motion of defendant City of New York for summary judgment dismissing the complaint as against it, and granted the motion of third-party defendant Seaboard Surety Company (Seaboard) for summary judgment dismissing the third-party complaint, unanimously modified, on the law, to the extent of dismissing all contractual claims of NYCTA as against Steers, and otherwise affirmed, without costs.

There is an issue of fact as to whether the infant plaintiff's failure to observe the vehicle that struck her was a foreseeable consequence of a construction enclosure arguably blocking her view at the subject intersection.

The record also presents triable issues as to whether Wenger, responsible for designing and creating the construction enclosure, unleashed a force of harm, such that it was not entitled to rely upon municipally approved plans (see Davies v Ferentini, 79 A.D.3d 528, 529-530 [1st Dept 2010]), or its status as an independent contractor (see Espinal v Melville Snow Contrs., 98 N.Y.2d 136 [2002]). Steers's argument that, although it took over for Wenger as general contractor, it had no duty or authority with respect to the enclosure, is contradicted by the record, since Steers's principal testified that his company moved the enclosure after the accident. Questions of fact also exist as to whether the enclosure followed the approved plans, and whether it should have been recognized it as unsafe.

Dismissal of the complaint as against the City was proper. There is no evidence that the City owed a special duty to plaintiff (see McLean v City of New York, 12 N.Y.3d 194, 201-204 [2009]), and its nondelegable duty as owner was not triggered since the defect was in the construction structure, not the roadway or sidewalk (compare Blake v City of Albany, 48 N.Y.2d 875 [1979]).

Seaboard was properly granted summary judgment since it had no control over the construction site and did not contract to assume Wenger's duties under its contract with NYCTA until after the accident.

However, all contractual claims interposed against Steers should have been dismissed. The record is devoid of any contract wherein Steers agreed to indemnify NYCTA.

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