Federico v. Defoe Corp.

138 A.D.3d 682

29 N.Y.S.3d 454

2016 N.Y. Slip Op. 02615

Nicholas FEDERICO, et al., appellants,

v.DEFOE CORP., respondent, et al., defendant.

2014-07056, 2014-08874, Index No. 6310/12.

Supreme Court, Appellate Division, Second Department, New York.

April 6, 2016.

Sacks and Sacks, LLP, New York, N.Y. (Scott N. Singer of counsel), for appellants.

D'Amato & Lynch, LLP, New York, N.Y. (Stephen F. Willig of counsel), for respondent.

Russo, Apoznanski & Tambasco, Melville, N.Y. (Susan J. Mitola of counsel), for defendant John C. DeLuca.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and BETSY BARROS, JJ.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Nassau County (Brown, J.), entered April 28, 2014, as granted that branch of the motion of the defendant Defoe Corp. which was for summary judgment dismissing the cause of action alleging common-law negligence insofar as asserted against it, and (2) so much of an order of the same court entered September 17, 2014, as, upon reargument, adhered to the original determination.

ORDERED that the appeal from the order entered April 28, 2014, is dismissed, as that order was superseded by the order entered September 17, 2014, made upon reargument; and it is further,

ORDERED that the order entered September 17, 2014, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendant Defoe Corp.

On November 4, 2011, the plaintiff Nicholas Federico (hereinafter the injured plaintiff) was working as a laborer for nonparty El Sol Contracting (hereinafter El Sol) on a construction project near the Gowanus Expressway in Brooklyn. His job that day was to set up and take down traffic lane closures near the drawbridge on Hamilton Avenue, below the expressway. El Sol was working on the project pursuant to a contract with the New York State Department of Transportation (hereinafter the NYSDOT), which issued El Sol a work permit allowing it to close lanes of traffic to perform its work. Sometime after 3:00 p.m. on November 4, 2011, the injured plaintiff was picking up El Sol's lane closures on one side of the Hamilton Avenue drawbridge by himself, in violation of El Sol protocol and governmental regulation, which required such work to be done with a truck to shadow the worker and to act as a barrier between the worker and traffic. As he did so, he was struck by a vehicle operated by the defendant John C. DeLuca.

The injured plaintiff, and his wife suing derivatively, commenced this action against DeLuca and Defoe Corp. (hereinafter Defoe), a contractor that was also doing work on the Gowanus Expressway near the El Sol project pursuant to a separate contract with the NYSDOT. With respect to Defoe, the injured plaintiff alleged that Defoe removed its own lane closures on the other side of the Hamilton Avenue drawbridge, upon which El Sol “piggybacked” its own lane closures, without first advising El Sol, and that such removal was negligent, particularly since someone from Defoe had told the injured plaintiff that Defoe planned on staying on the job site sometime beyond the usual 3:00 p.m. quitting time. Defoe moved for summary judgment dismissing the complaint insofar as asserted against it, contending that it owed no duty of care to the injured plaintiff and, in any event, that its complained of conduct was not a proximate cause of the subject accident. In opposition, the injured plaintiff argued that Defoe owed him a duty of care pursuant to Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 746 N.Y.S.2d 120, 773 N.E.2d 485 and its progeny, and that Defoe's breach of that duty was a proximate cause of the subject accident. The Supreme Court granted Defoe's motion and, upon reargument, adhered to its...