Decisions of Interest
Kenny v. Turner Construction Company, et al.
Supreme Court, New York County, Index No. 590556/10
Plaintiff Patricia Kenny commenced this action to recover for injuries allegedly resulting from her slip-and-fall on ice in a parking garage at the Alfonse M. D’Amato United States Courthouse in Central Islip. Kenny brought the suit against Turner Construction Company, the general contractor for the construction of the garage, and its various subcontractors, claiming that their negligence in the design, construction, and maintenance of the structure caused the leaking of water through the pavement and resulting formation of black ice on the garage floor.
Malapero & Prisco, representing Turner Construction Company, made a motion for summary judgment seeking dismissal of all claims, cross-claims, and counterclaims against it. In a decision dated March 15, 2015, the Supreme Court, New York County granted Turner’s motion for summary judgment, dismissing the claims against it as a matter of law.
In their motion, Malapero & Prisco established that Turner was contracted to follow the architectural plans and specifications provided by the General Services Administration (GSA), that their work conformed to those plans, and that they had no authority to deviate from them. They cited Diaz v Vasquez, (17 AD3d 134, 1st Dept [2005]), which affirmed in its decision that “a contractor is justified on relying upon the plans and specifications which he has contracted to follow unless they are so apparently defective that an ordinary builder of ordinary prudence would be put upon notice that the work was dangerous and likely to cause injury”. Plaintiff countered, citing their expert architect’s affidavit, in which he opined that the watertight seal across the joint, called for in the plans and specifications, was installed improperly, thus causing the leak.
Malapero & Prisco further argued that, as established in Espinal v Melville Snow Contrs. (98 NY2d 136 [2002]), a contractor does not owe a duty to a third-party, i.e. plaintiff, except in three circumstances: (1) the contractor negligently launches an instrument of harm; (2) the party detrimentally relied on the continued performance of the contractor’s duties; or (3) the contractor has entirely displaced the owner’s obligation to safely maintain the premises; none of which were applicable to Turner in this case. Plaintiff’s claims only addressed the first of the three, arguing that Turner negligently launched instruments of harm in improperly installing joints that were leaky and lights and fixtures that were not sufficiently weather resistant.
In its decision, the Court found that none of the Espinal exceptions were applicable in this case and dismissed plaintiff’s claims against Turner. Citing Landon v Kroll Lab. Specialists, Inc. (22 NY3d 1 [2013]), the Court asserted that even if Turner failed to properly seal the joints, or install the lighting and fixtures, the time between the installation and the incident was five years, a period of time long enough to render the harm too “remote or attenuated” to create a duty to plaintiff.