POWELL v. Island Transportation Corp., Defendant-Respondent, (1998)

Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered December 26, 1996, which, in a consolidated action for wrongful death and personal injuries allegedly caused by a malfunctioning traffic light, denied appellant contractor's motion for summary judgment and appellant City of New York's cross motion for partial summary judgment, unanimously modified, on the law, to grant appellant contractor's motion to the extent of dismissing plaintiffs' direct causes of action against it, and otherwise affirmed, without costs.   The Clerk is directed to enter judgment accordingly.

 The contract between the contractor and the City, which requires the former to exercise “extreme diligence” in repairing traffic lights only after being notified by the City that a traffic light is in need of repair, and which states that it is not to be “deemed to create any new right of action in favor of third parties against the Contractor”, does not evince an intention that the City's nondelegable duty to maintain its highways in a reasonably safe condition (see, Stiuso v. City of New York, 87 N.Y.2d 889, 890-891, 639 N.Y.S.2d 1009, 663 N.E.2d 321) be supplemented with a comparable duty on the part of the contractor, or that the contractor's orbit of duty be otherwise broadened to members of the general public (see, Ayala v. Kaestner, 224 A.D.2d 266, 267, 637 N.Y.S.2d 722, citing Parada v. City of New York, 205 A.D.2d 427, 429, 613 N.Y.S.2d 630;  see also, Francois v. New York City, 161 A.D.2d 319, 555 N.Y.S.2d 86;  see generally, Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d 220, 226, 557 N.Y.S.2d 286, 556 N.E.2d 1093;  H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 164, 159 N.E. 896).   However, while the contractor cannot be held liable to plaintiffs, issues of fact exist as to whether the contractor negligently performed its contract with the City, raised by, inter alia, evidence that the traffic light had been often malfunctioning for three or four months prior to the accident and expert affidavits that the unusually high frequency of repairs to the light was indicative of negligent maintenance, and thus the contractor's motion to dismiss the City's claim for indemnification was properly denied.   Nor can we find, as both the City and the contractor argue, that the malfunction, which, according to the predominate version of the event, involved a steady red signal for northbound traffic and a steady green signal for eastbound traffic, could not have been a proximate cause of the accident as a matter of law (see, Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 314-315, 434 N.Y.S.2d 166, 414 N.E.2d 666).

MEMORANDUM DECISION.