Upon the foregoing papers, defendant Welsbach Electric Corp.'s (hereinafter "Welsbach") motion for summary judgment, severing and dismissing the Verified Complaint and each cause of action asserted against it and for summary judgment severing and dismissing each cross-claim asserted against it by co-defendants Peralta, Cordero and The City of New York (hereinafter "City"), are denied. The cross-motion by the City for summary judgment dismissing plaintiff's complaint and all cross-claims against it, is denied.

The motion and cross-motion for summary judgment were previously made by Welsbach and the City but were denied as premature with leave to renew upon completion of discovery in a decision by this court dated February 25, 2003.

The cause of action involves an accident which occurred on May 22, 1999 at approximately 10:00 A.M. Plaintiff was crossing the street at the intersection of Southern Boulevard and Longwood Avenue when he was struck by an automobile driven by co-defendant Wilson Cordero. Plaintiff claims that the traffic control devices were defective in that the pedestrian signal indicated "WALK" and as he did so, he was struck by an automobile proceeding through the intersection. Plaintiff sustained injuries which resulted in the amputation below the left knee and right forefoot amputation. [*2]

Welsbach alleges that it had a contract with the City which involved the maintenance of illuminated traffic control devices in the Bronx. Welsbach asserts that pursuant to said contract, it was required to respond within two (2) to forty-eight (48) hours subsequent to notification from the New York City Department of Transportation (hereinafter "NYCDOT) that a specific illuminated traffic control device may be in need of repair. Welsbach contends that it had no duty to make repairs unless and until it was notified by NYCDOT of a potential problem at a specific intersection and it was not required to patrol or locate any malfunctioning traffic control device in need of repair. Welsbach further alleges that it is not responsible for the coordination and synchronization of the traffic signal devices and pedestrian lamp signals and that the New York City Department of Transportation, Bureau of Traffic Operations bears that responsibility. These contentions are supported by the affidavit of John Kiernan, a Welsbach employee.

In his affidavit in support of the motion, John Kiernan asserts that Welsbach is required to maintain the records of its maintenance and repair work performed pursuant to its contract with the City. He avers that the intersection history and maintenance reports maintained by Welsbach pertaining to work it performed at the subject intersection, indicates that it did not receive a single notification of a defect at the subject intersection during the three and one half months prior to plaintiff's accident or on the date of plaintiff's accident. Mr. Kiernan contends that from February 4, 1999 to May 22, 1999, Welsbach received no notifications of any kind. Mr. Kiernan does state in his affidavit that from October 1998 to February of 1999, at least twenty (20) calls were received by Welsbach for some type of traffic control signal problem at the subject intersection. However, on the date of plaintiff's accident and for four (4) months thereafter, Welsbach did not receive any notification of a problem at the intersection.

Welsbach contends that summary judgment should be granted in its favor because it owes no duty in tort to members of the general public such as the plaintiff or co-defendants, to perform its contract with the City to repair traffic signals. Moreover, Welsbach argues that it timely and completely fulfilled all of its contractual obligations to the City. Welsbach asserts that even though plaintiff contends that there was a defect in the traffic signals at the subject intersection, his credibility is undermined by the fact that Welsbach received no report of a defect at that intersection on the date of the accident and for four months thereafter. In addition, Welsbach contends that since there is no basis upon which plaintiff may recover against it, there is no basis upon which any other party can recover on a claim for common law indemnification or contribution against Welsbach.

The City cross-moves for summary judgment and asserts that the traffic signal maintenance log, which records traffic control device defects, complaint or problems reveals that the City received no notifications of any kind from February 4, 1999 until May 22, 1999 and further that the City received no notification of any defect in the traffic signal at the subject intersection until September 14, 1999 which was almost four (4) months after plaintiff's accident. The City argues that it is entitled to summary judgment because it did not have actual or constructive notice of the alleged defective traffic light. In order to establish a prima facie case against the City, a plaintiff must demonstrate actual or constructive notice of a defect and a [*3]reasonable time within which to correct or warn about its existence.

Defendants Peralta and Wilson oppose the motion and cross-motion. They refer to plaintiff's deposition testimony wherein he testified that the pedestrian indicator on the corner he was walking towards signaled "WALK" and that there were problems with the traffic control devices at the subject intersection before his accident. They further refer to the deposition of defendant Cordero wherein he testified that the light was a steady green in his favor as he approached the subject intersection. Peralta and Wilson contend that an issue of fact exists as to whether the traffic light was working at the time of the accident and both Welsbach and the City could be found to have failed to exercise reasonable care in performing their repair duties with respect to the subject traffic light.

Plaintiff opposes the motion by Welsbach and the cross-motion by the City and asserts that Welsbach did owe the plaintiff a duty and both the City and Welsbach had or should have had notice of the dangerous condition that existed at the intersection. Plaintiff asserts that pursuant to the contract between Welsbach and the City, Welsbach displaced the City of its role in maintaining and repairing the pedestrian and traffic control equipment in Bronx County. Plaintiff argues that both the City and Welsbach received numerous computer generated notifications of the recurring problems with the equipment at the subject intersection in the year before plaintiff's accident. Plaintiff asserts that Welsbach had to return the same or very next day after it had made repairs because of persistent malfunctions with the equipment. Moreover, despite the recurring problem, Welsbach never dispatched a senior level engineer or repairman to inspect the work performed by the repairmen, most of whom had no formal training in the repair and maintenance of this type of equipment.

Plaintiff refers to the deposition testimony of several non-party witnesses who testified that the lights at the subject intersection malfunctioned as early as three days prior to and on the date of plaintiff's accident. Several non-party witnesses testified at their deposition that the lights at the subject intersection frequently malfunctioned and repairmen were frequently observed at said intersection, including a "short time" prior to plaintiff's accident. Moreover, at least one non-party witness stated that he observed the traffic light indicate "WALK" as he crossed the street in the opposite direction of the plaintiff and several other people were crossing the street at the time plaintiff was struck by the vehicle driven by defendant Cordero.

Plaintiff also submits the affidavit of Nicholas Bellizzi, a licensed professional engineer, who in the previous summary judgment motion submitted by Welsbach, stated that he required further information before he could provide his expert opinion. In his current affidavit, Mr. Bellizzi, who performed a site inspection, reviewed several documents and the deposition testimony of non-party witnesses, concluded that the controller's documented frequent maintenance and repair history indicated "pin balling" which caused the traffic and pedestrian signals to become out of sync and that was a "persistent, repetitive, and re-occurring problem at this intersection." (Plaintiff's Exhibit D). He avers that the controller at the subject intersection should have been replaced immediately. Moreover, in Mr. Bellizzi's opinion, an additional cause [*4]for the persistent problem with the equipment at the subject intersection was the fact that the repairmen were not properly trained with respect to the types of equipment located at the intersection which prevented them from properly diagnosing and repairing the persistent problem at the subject intersection.

In reply, Welsbach asserts that Mr. Bellizzi's affidavit should be disregarded because the controller at the subject intersection was replaced on October 29, 1998 and thus the controller that was present on the date of plaintiff's accident was not the one that was "pin balling" prior to October 29, 1998. Welsbach avers that the deposition testimony of the Welsbach witnesses was misinterpreted by the plaintiff and Welsbach maintains that it owes no duty to the plaintiff. Moreover, Welsbach contends that there is no proof that Welsbach's performance of its work created a defective condition at the intersection and there is no proof of notice to Welsbach.

Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). "To obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his favor...and he must do so by tender of evidentiary proof in admissible form." Friends of Animals, Inc. v. Associated Fur Manuf., Inc., 46 NY2d 1065 (1979). The court's function on a motion for summary judgment is issue-finding rather than issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957).

It has been established that a contract between the contractor and the city, "...does not evince an intention that the City's nondelegable duty to maintain its highways in a reasonably safe condition...be supplemented with a comparable duty on the part of the contractor, or that the contractor's orbit of duty be otherwise broadened to members of the general public." Powell v. City of New York, 250 AD2d 409 (1st Dept. 1998). Moreover, in Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 NY2d 220 (1990), the court held that, "...a contractual obligation, standing alone, will impose a duty only in favor of the promisee and intended third-party beneficiaries and mere inaction, without more, establishes only a cause of action for breach of contract." Id. at 226; see also, Francois v. New York City, 161 AD2d 319 (1st Dept. 1990).

However, in Palka v. Servicemaster Management Services Corporation, 83 NY2d 579 (1994), the court recognized that, "...parties outside a contract are permitted to sue for tort damages arising out of negligently performed or omitted contractual duties..." Id. at 586. In Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136 (2002), the court identified three situations in which a party to a contract may be held liable to third persons. These are, "...where the contracting party, in failing to exercise reasonable care in the performance of his duties, launches a force or instrument of harm'...where the plaintiff detrimentally relies on the continued performance of the contracting party's duties...and where the contracting party has entirely displaced the other party's duty to maintain the premises safely..." (Citations omitted). Id. at 140. In Davilmar v. City of New York, 7 AD3d 559 (2nd Dept. 2004), the court found that, "The negligent repair of a traffic light may fall within the first exception for launching a force or [*5]instrument of harm" (citations omitted).

In the case at bar, the court finds that there are issues of fact which preclude summary judgment in favor of Welsbach and the City such as whether Welsbach's numerous repairs at the subject intersection were negligently performed , thereby creating the defective condition and "launching a force or instrument of harm." Moreover, there is an issue as to whether there was constructive notice to the City of the dangerous condition at the subject intersection. The evidence submitted by both the plaintiff and the defendants shows that the traffic signal at the subject location malfunctioned at least twenty times from September 8, 1998 to February 4, 1999 and Welsbach employees were dispatched to make repairs. Even after the controller was allegedly replaced on October 29, 1998, there were continued malfunctions of the traffic lights at the subject intersection.

Accordingly, the motion and cross-motion for summary judgment are denied.

This constitutes the decision and order of the court.

Dated May 16, 2007