Sears v. S3 Tunnel Construction AJV

Sears v S3 Tunnel Constr. AJV (2016 NY Slip Op 04450)

Sears v S3 Tunnel Constr. AJV

2016 NY Slip Op 04450

Decided on June 9, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 9, 2016
Mazzarelli, J.P., Acosta, Saxe, Kapnick, Kahn, JJ.

1417 101748/12

[*1]Rebecca Sears, Plaintiff-Respondent,

v

S3 Tunnel Construction AJV, et al., Defendants, Metropolitan Transportation Authority, Defendant-Appellant.

Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Marcia K. Raicus of counsel), for appellant.

Gropper Law Group, PLLC, New York (David De Andrade of counsel), for respondent.

Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered March 16, 2015, which, to the extent appealed from, denied defendant Metropolitan Transportation Authority's (MTA) motion for summary judgment dismissing the complaint and all cross claims against it, unanimously affirmed, without costs.

Plaintiff seeks damages for injuries she allegedly sustained when a re-paved trench in the street collapsed under her; at the time, construction of the Second Avenue subway was taking place in the area.

MTA failed to establish prima facie that it owes no duty to plaintiff because neither it nor its contractors launched a force or instrument of harm in performing their contractual duties (see Espinal v Melville Snow Contrs. , 98 NY2d 136, 140 [2002]). While the record conclusively demonstrates that two of MTA's contractors, defendants J. D'Annunzio & Sons, Inc. and S3 Tunnel Construction AJV, performed no work at the location where plaintiff fell, it also shows that there was a total of 10 contracts on the project, and MTA did not show that no work under any of the other contracts was done at that location. There is also evidence that other entities were performing excavation work within the area, and MTA did not show that the work of those entities was not related to the subway construction.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 9, 2016

CLERK