Upon the foregoing papers, the motion by the Defendants, NATIONAL GRID USA ("National Grid") and KEYSPAN GAS EAST CORPORATION ("Keyspan"), seeking an order pursuant to CPLR § 3212 granting them summary judgment and dismissing the Plaintiff's complaint and all cross-claims, is decided as hereinafter provided.

In the instant matter, the Plaintiff, EILEEN A. CUNNIFF ("Cunniff") seeks damages stemming from an accident that occurred on July 8, 2009, at approximately 5:30 p.m. At that time, the Plaintiff alleges that she was caused to trip and fall in a parking lot near building 7 of the Flowerfield Industrial Park, St. James, New York, when her right foot got caught in a trench. The property upon which the accident occurred is owned by the Defendant, GYRODYNE COMPANY OF AMERICA, INC. ("Gyrodyne"). The trench is alleged to have been created by the Defendant, Keyspan, when it installed a gas line on Gyrodyne's property.

The Plaintiff alleges in her Bill of Particulars that the Defendants were negligent in operating, maintaining and controlling the parking lot in causing and permitting the condition of the surface of the parking lot to be and remain in disrepair in that same was "caused, created and permitted to be and remain uneven, raised and depressed below the level of adjacent portions". (See Plaintiff's Bill of Particulars, dated, May 24, 2011, attached to the Defendants' Notice of Motion as Exhibit "C")

Defendants' Motion for Summary Judgment:

The Plaintiff testified at her Examination Before Trial on July 8, 2011, the transcript of which is attached to the Defendants' Notice of Motion as Exhibit "D". The Plaintiff testified that on July 8, 2009, as she was exiting building 7 of the Flowerfield Industrial Park, her right foot [*2]got caught in a trench that was approximately two to three inches in depth and five to six inches in width. (Id. at pages 24-25) She testified that she first observed the trench six days before the accident. (Id. at pages 36-37) Immediately prior to the accident, the Plaintiff was looking straight ahead and did not see the trench. (Id. at pages 26 and 36)

Clint Borkstrom testified at his Examination Before Trial on August 1, 2011, on behalf of the Defendant, Gyrodyne. Mr. Borkstrom testified that he has been employed by Gyrodyne for 21 years, 15 of which he held the title of Property Manager. (See Borkstrom Transcript, page 8, attached to the Defendants' Notice of Motion as Exhibit "F") As a Property Manager, Mr. Borkstrom's duties included leasing, lease negotiations and subcontracting work necessary for the premises. (Id. at pages 8-9) Mr. Borkstrom testified that Gyrodyne owned the Flowerfield Industrial Park, including the parking lot where the accident occurred, and that Stony Brook University, the Plaintiff's employer, was a tenant thereat. (Id. at pages 11-13) As the Property Manager, he was present at the property five days a week from 8:00 a.m. to 4:00 p.m. In addition to the aforementioned duties, Mr. Borkstrom was also responsible for conducting inspections of the parking lot on an ongoing and frequent basis. (Id. at pages 18-19)Mr. Borkstrom testified that Keyspan performed trenching work in the parking lot where the Plaintiff's accident occurred in connection with the installation of gas pipes for gas service to building 7. (Id. at page 21) The installation of the gas pipes was performed in March, 2009 pursuant to a contract between Keyspan and Gyrodyne. The installation took about two weeks to complete. According to Mr. Borkstrom, pursuant to the contract between Keyspan and Gyrodyne, Keyspan was responsible for the temporary restoration of the parking lot by use of a cold patch. Gyrodyne, however, was responsible for the permanent restoration of same. (Id. at page 21-24; see also Contract, dated January 14, 2009, attached to the Defendants' Notice of Motion as Exhibit "G") As noted by Mr. Borkstrom, Gyrodyne certified in Part 5 of the contract that it is the owner of the premises where the work was to be performed and that "the Utilities are not responsible for the permanent restoration on private property". (See Exhibit "G", Part 5)

Mr. Borkstrom further testified that after Keyspan completed the installation of the gas pipes, he performed an inspection of the premises and determined that the work was done well. (Id. at pages 27-28) During his inspection, Mr. Borkstrom checked to see if the filling of the trench was flush with the adjacent parts of the parking lot and found that it was "flush or close to flush". (Id. at page 29) He also testified that the only "small issue" he had was that Keyspan performed work beyond what was requested by Gyrodyne in terms of distance. (Id. at page 28)

As adduced from Mr. Borkstrom's deposition transcript, sometime later in 2009, Gyrodyne hired Pioneer Paving to rework the cold patch filling done by Keyspan. (Id. at pages 31-33) Specifically, Mr. Borkstrom testified that Pioneer Paving was hired to mill the area that Keyspan saw cut, trenched and then cold patched. (Id. at page 32)

Mr. Borkstrom's understanding of a cold patch is that it serves as a temporary repair. (Id. at page 39) It was also his understanding that Keyspan was responsible for temporarily repaving the area where the work was performed by putting down a cold patch. He further testified that a cold patch needs to "sit for a while" before it is permanently repaired as the subsurface is expected to settle. The trench should only be permanently repaired after the subsurface fully settles. According to Mr. Borkstrom, this is to avoid having to perform the repaving job more than once. (Id. at page 40) In Mr. Borkstrom's experience, normally, it would take about six months for the cold patch to fully settle. (Id.) In light of the six-month window to allow for full settlement of the subsurface, Mr. Borkstrom testified that he made arrangements for the permanent restoration of the surface [*3]subsequent to the six-month time frame. He believes the permanent repaving was done subsequent to the Plaintiff's accident on July 8, 2009.

In support of the motion, the Defendants also submit the deposition transcript of John Cooper, an employee of Keyspan, attached to the Defendants' Notice of Motion as Exhibit "H". Mr. Cooper testified that he has been employed by Keyspan, doing business as National Grid, for 39 years. (Cooper Transcript, Exhibit "H" at page 8) He recalled the job that was performed at the Flowerfield Industrial Park in March, 2009 concerning the installation of approximately 500 feet of 4 inch gas line and 2, two-inch sub-surfaces. (Id. at page 9) According to Mr. Cooper, after the work was completed, the excavated areas were temporarily restored by a backfilling process using dirt and then cold patching the area to leave it flush with the surrounding parking lot. (Id. at pages 31-34) Mr. Cooper confirmed that Keyspan was responsible for temporarily repaving the excavated areas and that the permanent paving was to be performed by Gyrodyne. (Id. at page 45) He further testified that Keyspan never received any complaints regarding the work that was performed. (Id. at page 31)

Also submitted in support of the Defendant, National Grid's application for summary judgment is the Affidavit of Lorraine Lynch, the Assistant Treasurer of National Grid. Ms. Lynch explains in her Affidavit that National Grid was a holding company that had no independent operations, did not own any physical assets and had no non-officer employees. She further attests that on the date of the Plaintiff's accident, National Grid did not own or operate the gas distribution system nor any gas facilities located in the County of Suffolk. National Grid also did not perform, supervise or oversee any excavation for the installation of gas pipelines at Gyrodyne. (See Lynch Affidavit, attached to the Defendants' Notice of Motion as Exhibit "I")

Based upon the foregoing testimony and evidence presented, the Defendant, National Grid, contends that all claims and cross-claims against it must be dismissed as it is not a proper party to this action. The Defendant, National Grid, submits that liability may not be imposed against it as it did not own, control, occupy, maintain, manage or possess the property where the accident occurred. Further, National Grid was not involved with the installation of the gas pipes performed solely by the Defendant, Keyspan.

The Defendant, Keyspan, contends that summary judgment is warranted in its favor as the record does not support a prima facie case of negligence against it. In that regard, Keyspan argues that it did not owe a duty to the Plaintiff, a third-party to the contract between Keyspan and Gyrodyne. In the event the Court finds that Keyspan owed a duty to the Plaintiff herein, Keyspan further argues that, as a matter of law, the record does not support a finding that it breached any duty owed to the Plaintiff in that Keyspan neither created the condition nor had notice of same.

In support of its argument that Keyspan did not owe a duty of care to the Plaintiff, the Defendant relies on the Court of Appeals case of Espinal v. Melville Snow Contractors, 98 NY2d 136 (2002). In that case, after a slip and fall in a parking lot, the plaintiff commenced an action against the owner of the parking lot, as well as the contractor that was responsible for snow and ice removal. The plaintiff claimed that the contractor created a dangerous and icy condition that caused her to fall. In affirming the appellate court's granting of the contractor's motion for summary judgment, the Court of Appeals held that a "contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party". Espinal, 98 NY2d at 139. The Court of Appeals did, however, recognize the following three circumstances where a party who enters into a contract may have assumed a duty of care to third persons, and thus, can be held liable: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, [*4]"launche[s] a force or instrument of harm", H.R. Moch Co. v. Rensselaer Water Co., 247 NY 160, 168 (1928); (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties, Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 NY2d 220, 226-227 (1990); and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely, Palka v. Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 589 (1994).

The Defendant, Keyspan, contends that none of the exceptions in Espinal apply to the case at bar. Keyspan urges that no evidence exists to establish that the Plaintiff detrimentally relied upon the continued performance of Keyspan's duties or that Keyspan entirely displaced Gyrodyne's duty to maintain the premises safely. Further, Keyspan submits that there is no evidence to support the conclusion that Keyspan launched an instrument of harm, or created the dangerous condition by failing to exercise reasonable care in the performance of its duties.

Plaintiff's Opposition:

At the outset, it must be noted that nowhere in the Plaintiff's counsel's forty-page Affidavit in Opposition is it contested that National Grid is not a proper party to this case.

In opposition to the motion for summary judgment in favor of Keyspan, the Plaintiff submits the expert Affidavit of Herbert Weinstein, P.E., a professional engineer licensed in the State of New York. (See Weinstein Affidavit, attached to the Plaintiff's Opposition as Exhibit "E") Mr. Weinstein states in his Affidavit that the Defendant, Keyspan, failed to adhere to and comply with industry standards regarding the backfilling and surfacing of the trench which caused the Plaintiff's accident. (Id. at page 3) Specifically, Mr. Weinstein states that the Defendant, Keyspan, improperly backfilled and surfaced the trench by, inter alia: (1) backfilling and surfacing the trench so that it would settle rather than properly backfilling and surfacing the trench so that it would remain flush with the adjacent areas of the parking lot; (2) refilling the trench in two lifts rather than five; (3) using a New Holland Skid Steer tire instead of a steam roller to level the trench; and (4) violating certain provisions of the New York State Building Code and the New York State Department of Labor. (Id. at pages 3-4)Mr. Weinstein further attests that Keyspan's failure to conform to standards of good and accepted engineering and building safety practices created the condition of the trench which was uneven, raised and depressed below the level of adjacent portions of the parking lot. In sum, Mr. Weinstein states that the settling would not have occurred but for the manner in which Keyspan backfilled the surface of the trench subsequent to the excavation of the area. Accordingly, he concludes, that Keyspan's failure to comply with industry standards resulted in the creation of a tripping hazard which was a competent producing cause of the Plaintiff's accident. (Id. at page 6)

Plaintiff's counsel does not dispute the standard set forth in the Defendants' moving papers regarding a contracting party's duty of care to third persons. Counsel does, however, argue that an issue of fact exists as to whether Keyspan's actions advanced to such a point as to have launched a force or instrument of harm, citing to H.R. Moch Co. v. Rensselear Water Co., supra, among other cases. In that regard, the Plaintiff's counsel states that Keyspan failed to establish, as a matter of law, that its actions in excavating, filling, repaving, rolling, compacting, cleaning and scraping the trench did not create or exacerbate the dangerous condition which caused the Plaintiff's accident. Moreover, counsel argues that Keyspan failed to refute the statutory violations alleged in the Plaintiff's Bill of Particulars.

Gyrodyne's Opposition:

Gyrodyne also submitted opposition to Keyspan and National Grid's motion for summary judgment setting forth similar arguments as contained in the Plaintiff's opposition. Counsel for Gyrodyne refers to Keyspan and National Grid collectively as "National Grid". In addition to the [*5]arguments raised in the Plaintiff's opposition, Gyrodyne contends that National Grid is not shielded from liability based solely on the fact that Gyrodyne accepted the completed paving job because the work performed created a latent defect. To that end, Gyrodyne avers that in cases where a latent defect is alleged, the mere fact that the work was accepted does not relieve the contracting third-party from liability, citing to a Third Department case, Sternbach v. Cornell University, 162 A.D. 922 (3d Dept. 1990).

Defendant, Keyspan and National Grid's Reply:

In Reply, the moving Defendants contend that National Grid is entitled to summary judgment as there was no opposition to the contention that National Grid did not own, control, occupy, maintain, manage, or possess the property where the accident occurred. There is also no dispute that National Grid did not perform any work in the subject parking lot.

Moreover, Keyspan claims that it is entitled to summary judgment as it is undisputed that, after the work was completed in March of 2009, the trench was temporarily restored to flush with the adjacent areas of the parking lot. Keyspan contends that the settling of the temporary restoration approximately four months later does not establish that Keyspan failed to perform its duties with reasonable care and, thus, launched a force or instrument of harm. Counsel for Keyspan urges that should this Court follow the Plaintiff's counsel's reasoning, Keyspan would be liable indefinitely, so long as Gyrodyne failed to permanently restore the trench.

Legal Discussion:

While several arguments were raised by the moving Defendants in support of their motion for summary judgment, the Court must preliminarily decide whether or not the Defendant, Keyspan, owed a duty to the Plaintiff, a third party.

There being no opposition to National Grid's application, the motion for summary judgment in favor of the Defendant, National Grid, is GRANTED, and all claims and cross-claims against it are DISMISSED.Summary judgment is a drastic remedy and should only be granted where there are no triable issues of fact. Andre v. Pomeroy, 35 NY2d 361 (1974). The goal of summary judgment is to issue find, rather than to issue determine. Hantz v. Fleischman, 155 AD2d 415 (2d Dept. 1989). To make out a prima facie case of negligence, the Plaintiff has the obligation to demonstrate that the Defendant created the condition or had actual or constructive notice of the defective condition and failed to remedy it. Gordon v. American Museum of Natural History, 67 NY2d 836 (1986); Stumacher v. Waldbaum, 274 AD2d 572 (2d Dept. 2000); Bonilla v. Starrett City, 270 AD2d 377 (2d Dept. 2000). The Plaintiff must first demonstrate, however, that the Defendant owed a duty to the Plaintiff.

"Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party". Espinal, 98 NY2d at 138, quoting Darby v. Compagnie Natl. Air France, 96 NY2d 343, 347 (2001); Pulka v. Edelman, 40 NY2d 781, 782 (1976). "[T]he existence and scope of a duty is a question of law requiring courts to balance sometimes competing public policy considerations". Espinal, 98 NY at 138, quoting Palka, 83 NY2d at 585-586; Eaves Brooks, 76 NY2d at 226-227.

As aforementioned, "a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party". Espinal, 98 NY at 138, quoting Eaves Brooks, 76 NY2d at 226. The general rule is based upon the theory that "imposing liability under such circumstances could render the contracting parties liable in tort to an indefinite number of potential beneficiaries' ". H.R. Moch Co. v. Rensselaer Water Co., 247 NY 160 (1928). [*6]

As noted earlier, Moch, Eaves Brooks and Palka recognize three contractual situations where a party who enters into a contract assumes a duty of care to third parties, to wit: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, "launche[s] a force or instrument of harm"(Moch); (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties (Eaves Brooks); and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely (Palka).

Here, the issue is whether any such duty ran from the Defendant, Keyspan, to the Plaintiff. The second and third exceptions outlined above do not appear to be at issue in this case. The Plaintiff and the Defendant, Gyrodyne, claim in their respective opposition papers, that Keyspan owes a duty to the Plaintiff as there exists a question of fact as to whether it failed to exercise reasonable care in the performance of its duties such that it launched a force or instrument of harm.

With these long-standing legal principles in mind, the Court concludes that Keyspan is entitled to summary judgment as a matter of law. In opposition, the Plaintiff and Gyrodyne rely on the Moch exception, contending that Keyspan's backfilling of the trench was, in and of itself, negligent. More specifically, it is argued that Keyspan knew that the temporary filling would settle, thereby causing a defective condition and falling within the Moch exception. The Court disagrees.

The contractual agreement between Keyspan and Gyrodyne unequivocally states that the owner of the property, Gyrodyne, is responsible for the "permanent restoration" of the property. (See Exhibit "G", Part 5) Mr. Borkstrom, the Property Manager who testified on behalf of Gyrodyne, confirmed that the work performed by Keyspan was satisfactorily completed and that the trench was left "flush or close to flush" with the surrounding parking lot. No affidavit was submitted on behalf of Gyrodyne to state otherwise. Further, Mr. Borkstrom admitted that he knew the temporary cold patch filling performed by Keyspan would fully settle in six months. These facts establish that Keyspan performed its duties in accordance with the terms set forth in the contract. Moreover, the evidence establishes that Gyrodyne, not Keyspan, was in the best position as the owner of the premises to warn pedestrians who traverse the area of any potential defective condition. Notwithstanding, Gyrodyne did nothing to warn or remedy a condition it knew could potentially be hazardous to those traversing the area.

The Court agrees with Keyspan's contention that following the reasoning of the Plaintiff could potentially lead to an indefinite number of beneficiaries to the contract for an indefinite period of time so long as Gyrodyne failed to permanently restore the excavated areas.

Moreover, the Affidavit of Mr. Weinstein is insufficient to defeat the Defendants' motion for summary judgment. There are several deficiencies the Court notes in the Affidavit. First, the Plaintiff's expert fails to distinguish between temporary and permanent restoration of the excavated area. Neither term is defined. Mr. Weinstein simply sets forth a procedure that appears to be for permanent restoration. Indeed, he states in his Affidavit that the Defendant, Keyspan, "improperly backfilled and surfaced the trench by ... backfilling and surfacing the trench so that it would settle rather than properly backfilling and surfacing the trench so that it would remain flush with the adjacent areas of the parking lot". (See Weinstein Affidavit, Exhibit "E") The Court cannot impose such a duty upon Keyspan absent some rule or regulation requiring it to do so. The fact remains that Gyrodyne and Keyspan entered into a written contract where it was knowingly agreed that Keyspan would perform a temporary restoration of the excavated area.

Second, and perhaps more importantly, the conclusion that Keyspan departed from good and accepted engineering practices is not based upon a comparison of Keyspan's work with that of a documented industry standard. In other words, as noted by Keyspan's counsel, Mr. Weinstein fails [*7]to cite to any authority, treatise, standard, building code, article or other evidence to support its conclusion that Keyspan departed from good and accepted practice within the field of engineering. See Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1 (2005) (expert affidavit insufficient to raise question of fact as to whether defendant breached its duty where expert cited no authority, treatise, standard, building code, article or other corroborating evidence to support his assertion and good and accepted engineering and building safety practices called for the installation of tempered glass in the General Motors building when it was erected). Similarly, here, there is no applicable authority cited by the Plaintiff's expert that supports the conclusion that Keyspan breached its duty by failing to ensure that the excavated area should remain permanently flush with the surrounding areas of the parking lot.

Any duty owed by Keyspan, absent some evidence of its failure to reasonably perform its duties as specified in the contract, is owed to Gyrodyne, the party with whom it maintains privity. See Moch, 247 NY at 161. In Moch, the defendant, a water works company, contracted with the city of Rensselaer for the supply of water during a term of years. The plaintiff in that case, a homeowner, commenced an action against the water works company for damage to the plaintiff's home that allegedly resulted from inadequate water pressure. In holding that the plaintiff's claims must be dismissed as a matter of law, Chief Justice Cardozo eloquently reasoned that "if conduct has gone forward to such a stage that inaction would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury, there exists a relation out of which arises a duty to go forward". (See Moch, 247 NY at 167) Following that reasoning, Chief Justice Cardozo found that no such relation existed between the water works company and every one "who might potentially be benefitted [sic] through the supply of water at the hydrants as to give to negligent performance, without reasonable notice of a refusal to continue, the quality of a tort". He continued, "[w]e are satisfied that liability would be unduly and indeed indefinitely extended by this enlargement of the zone of duty".

Similarly, here, there was no affirmative inaction on the part of Keyspan. Had Keyspan been contracted to conduct a permanent restoration of the excavated area, and failed to do so, a relation would exist out of which a duty would arise. Rather, the record herein is devoid of any evidence tending to show that the property was left in a hazardous, defective condition, or that Keyspan was in any way negligent in its performance of the contract.

The statutory provisions alleged to have been violated by Keyspan are not applicable to the case at bar.

Moreover, the cases cited by the Defendant, Gyrodyne, that stand for the proposition that "where a latent defect is alleged the mere fact that the work was accepted does not relieve the contracting third-party from liability" are readily distinguishable. Each of those cases involve circumstances where the contracted work to be performed by the contracting party was alleged to have been performed negligently. Here, Gyrodyne, in essence, claims that Keyspan was negligent because it failed to perform a permanent restoration of the excavated area, a job it was never contracted to perform. As such, for the reasons set forth above and based upon the record presented herein, there is insufficient evidence to support the conclusion that Keyspan failed to perform its duties pursuant to the contract in a reasonable manner.

Accordingly, it is hereby

ORDERED, that the motion by the Defendants, National Grid and Keyspan, seeking an order pursuant to CPLR § 3212, granting them summary judgment and dismissing the Plaintiff's complaint and all cross-claims against, is GRANTED. [*8]

This constitutes the decision and order of the Court.

All matter not specifically addressed herein are DENIED.DATED:Mineola, New York

July 26, 2012

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Hon. Randy Sue Marber, J.S.C.