ACCIDENT VICTIM FELL IN TRENCH IN SHOP; DEFENSE SUMMARY JUDGMENT MOTION DENIED, ISSUE OF FACT WHETHER IT DIRECTED THE DIGGING

Court: Supreme Court, Appellate Division, First Department, New York

Case: Joseph Kramer v. Virginia Cury

Date: Feb. 9, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident attorney)

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Order, Supreme Court, Bronx County (John A. Barone, J.), entered October 27, 2010, which, insofar as appealed from, denied the motion of defendant plaintiff V.S.R. Mechanical Corp. (V.S.R) for summary judgment dismissing the complaint and all cross claims as against it, unanimously affirmed, without costs.

Dismissal of the complaint as against V.S.R is not warranted in this action where plaintiff sustained injuries when he allegedly fell in a trench in the workshop of a boat motor repair shop. "[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party" (Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002]). However, "an exception exists where a contractor who undertakes to perform services pursuant to a contract negligently creates or exacerbates a dangerous condition by launching its own 'force or instrument of harm' " (Cornell v. 360 W. 51st St. Realty, LLC, 51 A.D.3d 469, 470, 857 N.Y.S.2d 124 [2008], quoting Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 168, 159 N.E. 896 [1928]). Here, the record presents triable issues of fact as to whether V.S.R directed the digging of the subject trench, and did further digging in it once the trench was created (see Grant v. Caprice Mgt. Corp., 43 A.D.3d 708, 841 N.Y.S.2d 555 [2007]).

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