FP Obtains Affirmance of Summary Judgment in Premises Liability Case

In this premises liability action, the plaintiff allegedly sustained injuries due to a defective condition on a public sidewalk abutting a construction site.  Our client, defendant New Empire Builder Corp. (“New Empire”) was listed as a contractor on certain building permits relating to the construction site. After the completion of discovery, Senior Partner Wendy Cardali successfully moved, on behalf of New Empire, for summary judgment seeking dismissal of the complaint contending that it did not create the allegedly dangerous condition, had no obligation to maintain or repair it, and did not owe the plaintiff any duty of care. The Supreme Court, Kings County, granted New Empire’s motion, and the plaintiff appealed.
In an Order and Decision dated January 13, 2021, the Appellate Division in all respects affirmed the summary judgment dismissal of the Complaint against New Empire. In its favorable decision, the court agreed with Nancy Lewis’ argument that New Empire did not owe the plaintiff any duty of care, as it did not own or make any special use of the sidewalk where the plaintiff’s injury occurred, and that while it had a contractual relationship with the owner whose property abutted the sidewalk, and had obtained some permits to perform construction work thereon, a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party.

The court also agreed that none of the three “Espinal exceptions” that may give rise to a duty of care (and hence liability to a third-party stranger to the contract), were present.  Those exceptions are:

(1)  where the contracting party, in failing to exercise reasonable care in the performance of its contractual duties, “launches a force or instrument of harm;

(2)  where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties; and

(3)  where the contracting party has entirely displaced the other party’s duty to maintain a premises in a safe condition.

Espinal v Melville Snow Contrs., 98 NY2d 136, 138 (2002)

The court reasoned that even assuming the allegation that New Empire created the allegedly dangerous sidewalk bridge was sufficient to invoke the first Espinal exception, New Empire affirmatively demonstrated that the exception did not apply. The court further found that in opposition to our prima facie showing in this regard, plaintiff, in opposition, failed to come forward with evidence sufficient to raise a triable issue of fact. Accordingly, the court concluded that the trial court had properly granted New Empire’s motion for summary judgment.

To learn more about this decision, or to learn how Fleischner Potash LLP can help with your insurance defense matters, please contact Wendy Cardali at wcardali@fp.law or Nancy Lewis at nlewis@fp.law

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