Richard Argentina, et al., Plaintiffs–Appellants, v. 681 LLC (2015)

Law Office of James J. Toomey, New York (Eric P. Tosca of counsel), for 681 Fifth Avenue LLC respondent.

Cartafalsa, Slattery, Turpin & Lenoff, New York (Patricia G. Zincke of counsel), for Skyline Windows, LLC respondent.

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Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered September 27, 2013, which, to the extent appealed from as limited by the briefs, granted defendant Skyline Windows, LLC's motion for summary judgment dismissing the complaint as to it, and all cross claims, unanimously reversed, on the law, without costs, the motion denied, and the complaint as against Skyline, and all cross claims, reinstated.

Plaintiff Richard Argentina and his wife, suing derivatively, commenced this action for injuries that plaintiff, a laborer on a construction projct, received while attempting to dispose of an old window that had been removed.   Employees of defendant Skyline Windows, LLC had cut the windows with a reciprocating saw to remove them from the wall, and a shard of glass dislodged from a cut window as plaintiff was carrying it, injuring him.

Questions of fact exist as to whether Skyline's alleged failure to tape the glass on the windows before cutting and removing them was negligent.   In support of its assertion that its contract with building owner 681 Fifth Avenue LLC created no duty to plaintiff to tape the windows, Skyline relies on inapposite authority holding that a contractor has no duty to perform work beyond the scope of its contract, to detect unrelated defects (see Kleinberg v. City of New York, 27 AD3d 317 [1st Dept 2006];  Quinones v. City of New York, 105 AD3d 932, 933–934 [2d Dept 2013] ).   That is not the case here, where the allegations against Skyline arise from its purportedly negligent performance of work it did perform.   It had a duty to perform its work in a safe manner that did not unreasonably expose others to danger (Vega v. S.S.A. Props., Inc., 13 AD3d 298, 302 [1st Dept 2004] ).   While Skyline owed no contractual duty to plaintiffs regarding the performance of its work, it may nevertheless be liable to them in tort to the extent that its negligent performance of the duties that it performed, pursuant to its contract with defendant building owner, created a dangerous condition that injured plaintiff (id.;  Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140 [2002] ).

Skyline's cross claim for common law and/or contractual indemnification was dismissed solely as a consequence of the dismissal of plaintiff's complaint, and not on the merits.   As such, we reject 681 Fifth Avenue LLC's request that Skyline's cross claim against it be dismissed, even if the complaint is reinstated.

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CLERK