JOSHUA BY CARMEN v. [And a Third–Party Action] (2018)

Order, Supreme Court, New York County (James d'Auguste, J.), entered September 12, 2017, which granted the motion of defendant/third-party plaintiff 101 Delancey Realty, LLC (101 Delancey) for summary judgment dismissing the complaint and cross claims as against it, and denied the cross motion of defendant Jumuna Contracting, Inc. (Jumuna) for summary judgment dismissing the complaint and cross claims as against it, unanimously affirmed, without costs.

The infant plaintiff was a pedestrian on the sidewalk adjacent to a building owned by 101 Delancey that was undergoing construction, when he was struck in the eye by an unknown particle, which appeared to be debris.  Plaintiff testified at his deposition that, before the incident, he saw a man on a ladder in front of the building holding a scraper, and debris, like small rocks and pebbles, on the ground.  101 Delancey had retained Jumuna to perform repairs, including removing stucco from the facade.

Although Jumuna was an independent contractor, it can be held liable to non-contracting third parties if it “launched a force or instrument of harm” (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 139–140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ).  Jumuna contends it was not working at the building on the date of plaintiff's accident, but the record presents issues of fact concerning whether or not its employee was present at the time of the accident.

With respect to 101 Delancey's motion for summary judgment, 101 Delancey made a showing that it could not be held liable for injuries resulting from the work performed by Jumuna, an independent contractor, since the work was not inherently dangerous and 101 Delancey did not assume control over the work (see Kleeman v. Rheingold, 81 N.Y.2d 270, 274, 598 N.Y.S.2d 149, 614 N.E.2d 712 [1993];  Fernandez v. 707, Inc., 85 A.D.3d 539, 540, 926 N.Y.S.2d 408 [1st Dept. 2011] ).  While Jumuna asserts that 101 Delancey owed a nondelegable duty to protect pedestrians on the public sidewalk from hazards caused by work performed for its benefit, Jumuna failed to raise any factual issue that would put 101 Delancey on notice of a dangerous condition (see Schwartz v. Merola Bros. Constr. Corp., 290 N.Y. 145, 151–152, 48 N.E.2d 299 [1943];  Emmons v. City of New York, 283 A.D.2d 244, 245, 725 N.Y.S.2d 29 [1st Dept. 2001] ).

We have considered the remaining arguments and find them unavailing.