DEAR v. FALK (1998)

In January 1995 plaintiff's decedent, who had stopped along Interstate 490 East to help a stranded motorist, was struck and killed by a car whose operator lost control.   At the time of the accident, the roadway in the area was being reconstructed and widened, although actual construction work had been shut down for the winter season.   Plaintiff sued the operator and the owner of the car that struck decedent and defendant Sealand Contractors Corp. (Sealand), the general contractor on the construction project.

After joinder of issue and discovery, Sealand moved for summary judgment dismissing the complaint against it.   Plaintiff cross-moved for a preclusion order.

Supreme Court properly granted Sealand's motion.   Sealand met its initial burden of establishing its entitlement to judgment as a matter of law by showing that it performed its work in compliance with the contract requirements and with the plans and specifications provided by the State of New York, that the alleged defects were not so obvious as to put Sealand on notice that it was constructing something likely to cause injury and that it did not design the project (see, Ryan v. Feeney & Sheehan Bldg. Co., 239 N.Y. 43, 46, 145 N.E. 321, rearg. denied 239 N.Y. 604, 147 N.E. 214;  Quinn v. Nigro Bros., 216 A.D.2d 281, 627 N.Y.S.2d 783;  Loconti v. Creede, 169 A.D.2d 900, 903, 564 N.Y.S.2d 823).   In response, plaintiff failed to tender evidentiary proof raising a triable issue of fact (see, Morriseau v. Rifenburg Constr., 223 A.D.2d 981, 982, 636 N.Y.S.2d 883;  Rainbow v. Albert Elia Bldg. Co., 79 A.D.2d 287, 289, 436 N.Y.S.2d 480, affd. 56 N.Y.2d 550, 449 N.Y.S.2d 967, 434 N.E.2d 1345).

In light of our determination, it is unnecessary to address the issue raised by plaintiff concerning her cross motion for preclusion.

Order unanimously affirmed without costs.

MEMORANDUM: