Siegl v. New Plan Excel Realty Trust, Inc.

Peradotto, J.

(dissenting in part). I respectfully dissent in part because, in my view, there is a question of fact whether third-party defendant AALCO Septic & Sewer, Inc. (AALCO) created the dangerous condition in question, thereby rendering it liable for injuries sustained by Sally Siegl (plaintiff) (see Espinal v Melville Snow Contrs., 98 NY2d 136, 141-142 [2002]).

Plaintiffs commenced this action seeking damages for injuries that plaintiff sustained when she fell in a parking lot owned by defendant/third-party plaintiff, New Plan Excel Realty Trust, Inc. (New Plan). Approximately two months prior to the accident, New Plan hired AALCO to repair a broken water main located underneath the parking lot. To access the water main, AALCO cut through the pavement and dug a hole in the parking lot that was approximately six feet long by six feet wide and seven feet deep. After repairing the water main, AALCO refilled the excavated area and topped it with “cold patch,” i.e., a mixture of crushed stone and tar, which was then tamped down and sealed. During the period of time between the placement of the cold patch and plaintiffs accident, the crushed stones apparently settled, causing a depression in the parking lot in the area where plaintiff fell. New Plan commenced a third-party action against AALCO seeking, inter alia, common-law indemnification and contribution. In its bill of particulars, New Plan alleged that AALCO “caus[ed] the defect” in the parking lot by “failing to adequately and properly refill the hole caused by their excavation work” and that AALCO “created a hazardous depression in the parking lot.”

I agree with the majority that Supreme Court properly granted that part of AALCO’s motion for summary judgment dismissing the common-law indemnification claim against it inasmuch as “[t]he right of common-law indemnification belongs to parties determined to be vicariously liable without proof of any negligence or active fault on their part” (Brickel v Buffalo Mun. Hous. Auth., 280 AD2d 985, 985 [2001] [emphasis added]). As the majority correctly notes, regardless of AALCO’s negligence in the performance of its repair work, New Plan was itself negligent in failing to conduct an adequate inspection of its parking lot and in failing to remedy any defective conditions therein (see generally Basso v Miller, 40 NY2d 233, 241 [1976]).

In my view, however, the court erred in granting that part of AALCO’s motion for summary judgment dismissing the contribution cause of action against it. It is well settled that “a party [that] enters into a contract to render services may be said to have assumed a duty of care — and thus be potentially liable in tort — to third persons . . . where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, ‘launche[s] a force or instrument of harm’ ” (Espinal, 98 NY2d at 140, quoting Moch Co. v Rensselaer Water Co., 247 NY 160, 168 [1928]) or, in other words, where that party creates or exacerbates a dangerous condition (see id. at 142-143). Here, AALCO’s own submissions raised a triable issue of fact whether it “launched an instrument of harm by creating or exacerbating a hazardous condition,” i.e., the depression in the parking lot (Trzaska v Allied Frozen Stor., Inc., 77 AD3d 1291, 1293 [2010]; see Espinal, 98 NY2d at 142-143; see also Miller v Pike Co., Inc., 52 AD3d 1240 [2008]). In support of its motion, AALCO submitted, inter alia, the deposition testimony of one of New Plan’s maintenance workers, who testified that he does not typically monitor areas of the parking lot that have been treated with cold patch because cold patch “normally holds.” Here, the cold patch allegedly settled approximately two inches within six to eight weeks after it was applied by AALCO. In my view, the development of such a significant depression within a relatively short period of time warrants at least an inference of negligence on the part of AALCO in filling the hole that it created, applying the cold patch, tamping it down, and/or sealing the area. I thus conclude that “there are triable issues of fact whether [AALCO] created or exacerbated the allegedly dangerous condition that caused plaintiff to fall” (Miller, 52 AD3d at 1240), precluding dismissal of the contribution cause of action against it.

I would therefore modify the order by denying that part of AALCO’s motion for summary judgment dismissing the contribution cause of action against it and reinstating that cause of action. Present — Centra, J.E, Peradotto, Lindley, Sconiers and Martoche, JJ.