By notice of motion, dated November 30, 2009, defendant Tishon Contracting Co., Inc. d/b/a Tor Contracting (Tor) moves for an order summarily dismissing all claims against it. Plaintiff and co-defendant C.A. Bros. Contracting Corp. (C.A. Bros.) oppose. By notice of motion, dated December 15, 2009, C.A. Bros. moves for an order summarily dismissing all claims against it, or, in the alternative, an order granting summary judgment on its common law indemnification claims against Tor. Plaintiff, Tor, co-defendants The Kips Bay Towers Condominium and The Condominium Board of the Kips Bay Tower Condominium, Inc. (collectively, Kips Bay), and co-defendant City of New York (City) oppose that portion of C.A. Bros.'s motion requesting summary dismissal. Tor also opposes that portion of C.A. Bros.'s motion seeking common law indemnification. By notice of cross-motion, dated January 26, 2010, Kips Bay moves for an order granting summary judgment on its contractual indemnification claim against C.A. Bros. C.A. Bros. opposes. By notice of cross-motion, dated February 11, 2010, City moves for an order summarily dismissing all claims and cross-claims against it. Kips Bay, C.A. Bros., and plaintiff oppose.

In May 2005, defendant building owner The Kips Bay Towers Condominium contracted with C.A. Bros. to install a new sidewalk at the southeast corner of 33rd Street and Second Avenue, in front of 300 East 33rd Street based on plans forwarded to it by its architect. (Affirmation in Support of Cross-Motion of Paul F. LaGattuta III, Esq., dated Jan. 26, 2010 [Jan. 26 LaGattuta Aff.], Exh. A]; Affirmation of Michael T. Altman, Esq., dated Feb. 17, 2010 [Feb. 17 Altman Aff.]). In June 2005, C.A. Bros. entered into a contract with Tor by which Tor agreed to provide all labor and "to complete work in a professional and timely manner and in accordance with all applicable codes." (Affirmation of John F. Gillespie, Esq., dated Nov. 30,2009 [Nov. 30 Gillespie Aff.], Exh. L; Feb. 17 Altman Aff.). C.A. Bros. provided Tor with the plans. (Id.).

Tor took two to three months to complete the work. (Id.). C.A. Bros.'s representative then inspected the work and signed a certificate of substantial completion which Kips Bay's architect also signed. (Affirmation of Robert P. Fumo, Esq., dated Dec. 15, 1999 [Dec. 15 Fumo Aff.], Exh. G at 41-42; Feb. 17 Altman Aff.). The representative took no measurements of the newly installed sidewalk or of the catch basin in the street. (Feb. 17 Altman Aff.; Dec. 15 Fumo [*2]Aff., Exh. G at 48-49).

On January 4, 2006, at approximately 9:30 a.m., plaintiff slipped and fell on an icy pedestrian ramp at the site of the new sidewalk. (Feb. 17 Altman Aff.). The ramp had a midsection where most people walk, and two narrower side sections. (Nov. 30 Gillespie Aff., Exh. F at 22). As plaintiff walked towards the midsection, she noticed frozen water or black ice extending approximately one and a half feet into the roadway. In order to avoid it, she walked onto the narrower section to her right, only to slip and fall on ice. (Id. at 21-23, 27).

On April 26, 2006, plaintiff served City with a summons and complaint (Dec. 15 Fumo Aff., Exh. A), and on August 11, 2006, an amended summons and complaint (Nov. 30 Gillespie Aff., Exh. C), alleging that the ice at the pedestrian ramp formed as a result of a "ponding condition," whereby water accumulated because the catch basin in the street did not adequately catch rain and snow. (Feb. 17 Altman Aff.).

On November 13, 2006, C.A. Bros. commenced a third-party action against Tor seeking indemnification. (Dec. 15 Fumo Aff., Exh. B). On January 10, 2007, another justice of this court granted plaintiff's motion for leave to amend the complaint to include Tor (Affirmation of Paul F. LaGattuta III, Esq., dated Dec. 17, 2009 [Dec. 17 LaGattuta Aff.], Exh. A]), and on January 31, 2007, plaintiff served a second supplemental summons and second amended verified complaint adding Tor as a defendant (id., Exh. B), and on February 20, 2007, C.A. Bros. served an answer to the second amended verified complaint (id., Exh. D). On March 2, 2007, City served an answer to plaintiff's second amended summons and complaint. (Affirmation of Lynn M. Leopold, Esq., dated Feb. 11, 2010 [Leopold Aff.], Exh. C). On March 19, 2007, Kips Bay served a verified answer to plaintiff's second amended verified complaint, adding cross-claims against all co-defendants. (Id., Exh. C). On April 18, 2007, Tor served an answer to the second amended verified complaint, with cross-complaints against the other defendants. (Nov. 30 Gillespie Aff., Exh. D). On April 20, 2007, Tor served an answer to C.A. Bros.'s cross-claim. (Id., Exh. B).

On August, 10, 2007, Kips Bay superintendent Jose Rosario testified at a deposition that he did not recall receiving any complaints about the sidewalk between 2004 and 2006. (Dec. 17 LaGattuta Aff., Exh. I at 30). The same day, C.A. Bros.'s vice-president Nicola Chiarizia testified at a deposition as follows: He visited the location regularly while the work was being performed, and after it was finished, found that it was satisfactorily completed. (Id., Exh. K at 29-30, 48). Tor had to "break up the sidewalk, put in a new sidewalk and . . . put in a new steel edge to the curb and . . . break up some of the street area alongside the edge of the curb and then repair it." (Id. at 58). After the work was completed, the curb line in the street and the pedestrian ramp sloped at the same angle as they did before Tor began the work. (Id. at 72). At no time did Chiarizia notice any pooling or ponding of water at the corner. (Id. at 52-53).

On December 5, 2007, Tor's owner Peter Anthony O'Reilly testified at a deposition as follows: Tor obtained the plans and specifications prepared by Kips Bay's architect. (Id., Exh. I at 16-17, 24). The curb corner and sidewalk were broken and needed to be replaced, and while that work was being performed, O'Reilly noticed no flooding. (Id. at 29, 35). Tor did no work on or around the catch basin; rather, it restored the sidewalk to its original condition. (Id. at 38, 47, 49).

On January 10, 2008, Kips Bay porter Richard Colon testified at a deposition as follows: He could recall no work on the sidewalk adjacent to the building, and believed that the ramp did [*3]not change in appearance over his ten-year tenure with Kips Bay. (Dec. 17 LaGattuta Aff., Exh. J at 29-33). He was aware that ice accumulated around the ramp, and occasionally applied salt to melt it. (Id. at 24). He also noticed water accumulate in the area when it rained and tried to push it into the sewer once or twice, but never attempted to correct the condition because he believed that the street was not his responsibility. (Id. at 38).

On September 17, 2008, plaintiff served the other parties with the report of its expert, who determined that, due to the reconstruction, the ponding condition resulted from either a maladjustment of the catch basin, or the post-repair re-surfacing of the roadway at the wrong slope. (Feb. 17 Altman Aff., Exh. A).

Kips Bay denies responsibility for the area where plaintiff fell because the pedestrian ramp is not part of the sidewalk, and asserts that it cannot be held liable for the negligent acts of its independent contractors, that there is no evidence that it directed, controlled, or supervised the subject work, and that its awareness of a general condition does not constitute sufficient evidence of constructive notice of the condition. (Dec. 17 LaGattuta Aff.). In support, it relies on Rosario's testimony that he did not recall receiving complaints about the sidewalk between 2004 and 2006 (id., Exh. I at 30), Colon's testimony that the area looked the same throughout the ten-year period of his tenure and that water would occasionally accumulate in the area (id., Exh. H), and O'Reilly's and Chiarizia's testimony (id., Exhs. I, K).

Plaintiff alleges that as Kips Bay's architect drafted the plans for the reconstruction, inspected the area, and had notice of the dangerous freezing and ponding condition, there exists a triable issue of fact as to Kips Bay's liability. (Feb. 17 Altman Aff.). In support, it annexes its expert report (id., Exh. A), and Colon's deposition (Dec. 17 LaGattuta Aff., Exh. J).

To the fullest extent permitted by law and to the extent claims, damages, losses or expenses are not covered by Project Management Protective Liability insurance purchased by [C.A. Bros.]. . . . [C.A. Bros.] shall indemnify and hold harmless [Kips Bay] . . . from any claims, damages, losses, and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work, provided that such claim, damage or loss or expense is attributable to bodily injury . . . but only to the extent caused by the negligent acts or omissions of [C.A. Bros.] . . . or anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such, claim, damage, loss or expense is caused in part by a party indemnified hereunder.

Tor also claims entitlement to summary judgment on C.A. Bros.'s cross-claim for indemnification on the grounds that the contract does not provide for indemnification and that it performed the work pursuant to C.A. Bros.'s instructions. (Id.).

In opposition, C.A. Bros. maintains that Tor performed all of the work and denies having provided it with any labor or equipment. It claims entitlement to common law indemnification from Tor if the accident is found to have resulted from Tor's negligence. (Affirmation of Robert P. Fumo in Partial Opposition to Tor's Motion for Summary Judgment, dated Feb. 10, 2010). [*7]

Plaintiff asserts that there is "ample evidence" that Tor negligently performed the work, and observes that Tor does not challenge its expert's report that the injuries were caused by a ponding condition resulting from the negligent reconstruction of the area. (Feb. 17 Altman Aff.).

In Luby, 47 AD3d 1053, the plaintiff sought to impute to the defendant a duty of care based on the defendant's breach of a contract with a third party. The court, relying on Espinal v Melville Snow Contractors, Inc., 98 NY2d 136 (2002), dismissed the action. In Espinal, the plaintiff slipped on ice and alleged that the defendant, who contracted with a property owner to remove snow, was negligent. (Id. at 138). The court held that the snow removal company's contractual obligation to the property owner did not create a duty of care to a third party, unless the "putative wrongdoer has . . . launched a force or instrument of harm" (id. at 139), explaining that "launch[ing] an instrument of harm" is the equivalent of "creat[ing] or exacerbat[ing] a condition" (id. at 142-143). Here, however, plaintiff's claim is not based on Tor's breach of a contractual obligation to C.A. Bros., but on an allegation that it actively created the ponding condition by negligently reinstalling the portion of the sidewalk in such a manner that water would not drain into the catch basin. Consequently, its reliance on Luby is misplaced.

Tor's reliance on Greenstein, 13 AD3d 338, is also misplaced. There, the plaintiff slipped and fell on a piece of wire mesh on a sidewalk nearby ongoing construction work. Having completed its work at the site one month earlier, the concrete subcontractor was relieved of liability for the presence of the piece of wire mesh. Here, plaintiff's claim is based on an expert's opinion that the dangerous condition resulted from reconstruction work concededly conducted by Tor. Consequently, Tor's completion of its work well before the accident is immaterial given plaintiff's theory of negligent construction which does not require proof that the negligent party was still at work on the site at the time of plaintiff's accident.

Although there are triable issues of fact as to Tor's liability, given the issues of fact as to C.A. Bros.'s own liability (see supra, VI.B.), a determination of Tor's indemnification of C.A. Bros. must await trial.

ORDERED, that City of New York's motion for an order summarily dismissing the action against it is granted, and all claims and cross-claims against City are dismissed; it is further

ORDERED, that Kips Bay's motion for an order summarily dismissing the action against it is granted, as is its motion for contractual indemnification for expenses not covered by Project Management Protective Liability insurance purchased by C.A. Bros. including but not limited to attorneys' fees arising out of or resulting from performance of the Work, provided that such expense is attributable to bodily injury, and all claims and cross-claims against the Kips Bay defendants are dismissed; it is further

ORDERED, that defendant C.A. Bros.'s motion for an order summarily dismissing the action against it is denied, as is its motion for common-law indemnification from Tor; it is further

ORDERED, that defendant Tor's motion for an order summarily dismissing the action [*8]against it is denied, and its motion for summary dismissal of C.A. Bros.'s cross-claim for indemnification is denied; it is further

ORDERED, that the remainder of the action shall continue; and it is further

ORDERED, that the Trial Support Office reassign this case to a non-City part and remove it from the Part 5 inventory. Plaintiffs shall serve a copy of this order on all other parties and on the Trial Support Office, 60 Centre Street, Room 158. Any compliance conferences currently scheduled are hereby cancelled.

This constitutes the decision and order of the court.

_______________________________

Barbara Jaffe, JSC

DATED:April 19, 2010

New York, New York