Belmer v. HHM Associates, Inc.Belmer v. HHM Associates, Inc.
We also note that plaintiff testified that the hole had been in the roadway for at least a month prior to the accident. Unquestionably, a party‘s constructive notice of a dangerous condition that was left unremedied constitutes evidence of negligence (see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). We disagree with the argument in Justice Tom‘s dissent that the record is devoid of evidence of negligence on the City‘s part. There was evidence of constructive notice on the part of the City. The City is under a nondelegable duty to maintain its streets in a reasonably safe condition (Thompson v City of New York, 78 NY2d 682, 684 [1991]). That duty remains fixed even if a dangerous street condition that causes injury is created by an independent contractor such as HHM (Lopes v Rostad, 45 NY2d 617, 623 [1978]). In light of the City‘s nondelegable duty, we are not persuaded by plaintiff‘s argument that there was no evidence of a failure by the City to exercise reasonable care.
Where pertinent,
We also disagree with Justice Tom‘s dissent to the extent it is based on the apparent premise that a municipality‘s breach of its nondelegable duty cannot give rise to culpable conduct within the meaning of
Also, although discussed in Justice Tom‘s dissent, the prior written notice law (
Citing Diaz v Vasques (17 AD3d 134 [1st Dept 2005], lv denied sub nom. Boggio v Yonkers Contr. Co., 5 NY3d 706 [2005]), HHM also argues that it had no duty to plaintiff because its work was performed pursuant to the City‘s contract specifications and approved by its engineers (see generally Espinal v Melville Snow Contrs., 98 NY2d 136 [2002]). Here, HHM relies on the consulting engineer‘s testimony that he approved the work as being performed according to specifications. The contract, however, defined “final acceptance” as the issuance of a certificate of completion and acceptance signed by the Commissioner of the Department of Design and Construction. The record contains no evidence that such a certificate was issued. Moreover, the contract further provided that the engineer‘s inspection and approval of the work did not relieve HHM of its obligation to perform according to the contract. Therefore, HHM did not conclusively establish that it performed its work pursuant to the contract specifications. We also respectfully disagree with Justice Catterson‘s dissent insofar as it suggests that holding HHM to the “final acceptance” provisions of its contract “elevates form over substance.” On the contrary, we look to the actual words of a contract so that form does not swallow substance (see Sutton v East Riv. Sav. Bank, 55 NY2d 550, 555 [1982]). In this case, HHM should not be heard to invoke its contract as a shelter against liability while, at the same time, seeking to avoid the plain meaning of its provisions.
The court properly permitted plaintiff‘s vocational economic analyst to testify about plaintiff‘s lost fringe benefits even though her union‘s collective bargaining agreement was not in evidence. An expert‘s opinion must generally be based on facts in the record or personally known to the witness (Hambsch v New York City Tr. Auth., 63 NY2d 723, 725 [1984]). Nevertheless, an expert may rely on out-of-court material that is “accepted in the profession as reliable in forming a professional opinion” (id. at 726 [internal quotation marks omitted]). HHM‘s objections to the expert‘s opinion were refuted by the fact that its own vocational expert also based his opinion, in part, on the collective bargaining agreement (see e.g. Greene v Xerox Corp., 244 AD2d 877, 878 [4th Dept 1997], lv denied 91 NY2d 809 [1998]).
We have considered HHM‘s remaining contentions and find them unavailing. Concur—DeGrasse, Richter and Manzanet-Daniels, JJ.
Tom, J.P., dissents in a memorandum as follows: Plaintiff al-
HHM‘s president testified that the company had resurfaced the area with temporary pavement on October 1, 2001, returning to connect a small pipe to a manhole on October 25, after which the excavation was backfilled and the road restored with temporary asphalt. Operations were suspended due to the holiday season, and no other work was performed until January 2002.
After the jury returned a verdict in plaintiff‘s favor, the parties submitted posttrial motions. The court granted plaintiff‘s motion to modify damages to the extent of adding an award of $22,000 for past medical expenses, bringing the total amount awarded to $1,697,174. The court denied HHM‘s motion to set aside the verdict, which asserted (1) that HHM owed plaintiff no duty of care, (2) that the awards for future lost earnings and medical expenses were speculative, and (3) that such awards were against the weight of the evidence. The trial court expressly noted that it had twice rejected HHM‘s position, advanced in motions interposed before and during trial, that it should not be held liable because maintenance of the streets is a nondelegable duty of the City.
On appeal, HHM contends that the trial court erred in denying its motion. Its primary contention is that the contractual duty it assumed for the City of New York does not extend to a third party, such as plaintiff, who was not an intended beneficiary of the contractual undertaking, and that the court erred in failing to instruct the jury to apportion fault as against the City. HHM contends that its acts, performed as a city contractor engaged to make street repairs, must be imputed to the municipality and maintains that its activities did not create any hazardous condition for which liability might be assigned. HHM further argues that the jury finding of permanent disability is
HHM is correct that, as a general principle, a duty undertaken as a contractual obligation does not extend to third parties (see Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, 226 [1990]). However, the law recognizes situations in which a duty of care is imposed on a party to a contract to provide services, which include, as pertinent here, where that party has “launche[d] a force or instrument of harm” (Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002], quoting Moch Co. v Rensselaer Water Co., 247 NY 160, 168 [1928]) by creating or exacerbating a dangerous condition (Espinal, 98 NY2d at 141-142).
The resolution of disputed facts is within the province of the jury, as is causation generally (Windisch v Weiman, 161 AD2d 433, 437 [1st Dept 1990], citing Kallenberg v Beth Israel Hosp., 45 AD2d 177, 180 [1st Dept 1974], affd 37 NY2d 719 [1975], and O‘Connell v Albany Med. Ctr. Hosp., 101 AD2d 637, 638 [3d Dept 1984]). On this record, the jury was at liberty to credit plaintiff‘s testimony that there was a substantial hole in the road surface, a dangerous condition, created by HHM in the course of its work on the sewer mains approximately six weeks before the accident, which defect was readily observable to plaintiff.
It is suggested that the complaint should be dismissed as against HHM because the City of New York, as the party charged with a nondelegable duty to maintain the streets in a safe condition, is wholly liable for the defect that caused plaintiff‘s injury. If this were the case, the City or any other party under a nondelegable duty would be unable to limit its liability in accordance with its relative culpability (
It is further proposed that HHM must be permitted to seek apportionment against the City under
While it has been remarked that
Finally, it is settled that the City cannot be held liable for a defect in the street on a theory of constructive notice (Amabile v City of Buffalo, 93 NY2d 471, 475-476 [1999] [“constructive notice of a defect may not override the statutory requirement of prior written notice of a sidewalk defect“]). The Pothole Law requires prior written notice of a defective condition as a prerequisite to bringing suit, and the burden rests on the plaintiff to plead and prove that such written notice had been received prior to injury (see Poirier v City of Schenectady, 85 NY2d 310, 314 [1995]; Laing v City of New York, 71 NY2d 912, 914 [1988]). To permit HHM to seek apportionment pursuant
The verdict was not against the weight of the evidence (see McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 206 [1st Dept 2004]). As noted, the jury‘s determination that there was a dangerous defect in the road resulting from HHM‘s construction activity has a rational basis in the record. It was within the jury‘s province to find that plaintiff‘s release of air from her inflatable seat cushion so as to better reach the pedals was not a proximate cause of her injuries, given the testimony of her safety officer that even with a fully inflated cushion, the driver of a bus going over a deep road defect would be jolted. Although plaintiff‘s collective bargaining agreement was not in evidence, her economist‘s valuation of her lost future benefits was properly based on that agreement (see Hambsch v New York City Tr. Auth., 63 NY2d 723, 725-726 [1984]; Tassone v Mid-Valley Oil Co., 5 AD3d 931, 933 [3d Dept 2004], lv denied 3 NY3d 608 [2004]). Indeed, HHM‘s vocational expert partially based his own valuation on the agreement. Further, because we conclude that HHM was under a duty of care, HHM was not prejudiced by opposing counsel‘s reading of a contract provision placing responsibility for injury on HHM.
Accordingly, the judgment should be affirmed.
Catterson, J., dissents in a memorandum as follows: I must respectfully dissent. In my opinion, there is no reason to remand for a trial to determine “relative culpability” pursuant to
This appeal arises out of a personal injury action, in which the plaintiff, a New York City Transit Authority bus driver, claimed that she was injured on December 5, 2001 when the front left tire of the bus she was driving struck a “hole” or “uneven pavement” on Atlantic Avenue in Brooklyn. The plaintiff further claimed that the road was improperly repaired by HHM, and that even if HHM did not create the hole, HHM assumed absolute liability for the condition of the road in its contract with the City.
The record reflects that HHM was hired by nonparty City of
HHM‘s president testified that on October 1, 2001, HHM workmen backfilled a 75-foot excavation along Atlantic Avenue, pursuant to the terms of the contract. On October 25, 2001, HHM returned to the site in order to connect a small pipe to a manhole. HHM‘s president further testified that the excavation was backfilled, and the road restored with temporary asphalt the following day.
The record also reflects that the City hired an engineering consulting firm to inspect and approve HHM‘s work. The resident engineer for the project testified that inspectors recorded the work performed by HHM every day to ensure that the work complied with the contract specifications, and, after HHM completed its work, to ensure that the road was safe for traffic during the holiday embargo.
At trial, at the conclusion of the plaintiff‘s case, HHM moved to dismiss the plaintiff‘s complaint for failure to establish a prima facie case, and at the close of the evidence, HHM moved for a directed verdict. The court denied the motions. Subsequently, HHM objected to the court‘s charge to the jury that “a contractor . . . is liable for injury to a person on the street . . . if, as a result of work performed, . . . the street was in a condition dangerous to persons on the street.” HHM argued that the charge described a landowner‘s duty. The court also refused HHM‘s request to charge the jury that the City has a nondelegable duty to maintain the road. The jury found in favor of the plaintiff and awarded damages in the amount of $1,675,174.2
Subsequently, the plaintiff moved to increase the award for past medical expenses. By order dated October 15, 2009, the motion court granted the plaintiff‘s motion and denied HHM‘s cross motion pursuant to
HHM now appeals on the grounds that it had no duty to the
While I agree with the majority that the court erred as to its charges to the jury, for the reasons set forth below, I would vacate the judgment and dismiss the complaint as against HHM on the ground that HHM had no duty to the plaintiff. Rather, the City was entirely liable for the condition of the road. Consequently, in my view there is no need to determine “relative culpability” pursuant to
The threshold question, whether HHM had a duty to the plaintiff, is a question of law for the court, not a question of fact for the jury. (Sheila C. v Povich, 11 AD3d 120, 125 [1st Dept 2004].) The plaintiff argues that HHM‘s duty to her arises either from HHM‘s contract with the City to “protect finished and unfinished work against any . . . injury,” or from HHM‘s negligent creation of a defect in the road. The first argument, that “[HHM] is responsible whether they created [the alleged hole] or did not [because] they assume[d] that responsibility” from the City pursuant to the contract, is without merit.
It is well established that a contract such as the one between HHM and the City generally does not create a duty owed by the contractor to the general public. (Moch Co. v Rensselaer Water Co., 247 NY 160, 168 [1928].) As Chief Judge Cardozo explained in Moch, the duty that the contractor owes is “to the city and not to its inhabitants” who benefit from the contract only incidentally. (Id. at 165.) Thus, HHM‘s duty under the contract was to the City, not the plaintiff. Nor did the contract relieve the City of its duty to the plaintiff. A municipality‘s duty to maintain the roads and highways in a reasonably safe condition is nondelegable. (See Stiuso v City of New York, 87 NY2d 889, 891 [1995].)
However, the plaintiff, having failed to bring a claim against the City, also attempts to foist tort liability onto HHM by arguing that by leaving a hole in the street HHM “launched a force or instrument of harm.” (See Espinal v Melville Snow Contrs., 98 NY2d 136, 140, 142 [2002] [a defendant contractor “launche(s) a force or instrument of harm” when it “negligently creates or exacerbates a dangerous condition” (internal quotation marks omitted)]; see also Church v Callanan Indus., 99 NY2d 104, 111 [2002] [“failing to exercise due care in the execution of (a) contract” may “launch( ) a force or instrument of harm” (internal quotation marks omitted)].) In my opinion, this argument fares no better.
The majority‘s argument—that the City‘s acceptance of the work was not “final” as defined by the contract because there was no issuance of a certificate of completion signed by the Commissioner—elevates form over substance. It is undisputed that after HHM stopped work on the roadway on October 26, 2001, the City inspected HHM‘s work, approved it, and opened Atlantic Avenue to traffic, thereby implicitly authorizing the road as safe for use. In my view, this was a de facto final acceptance as to the work that HHM had completed so far. Thus, the condition of the roadway was the City‘s responsibility until HHM resumed work after the holiday break. To subject HHM to liability for a purported defect arising from work approved by the City one month prior to the accident would create the very type of “indefinitely extended” duty “to an indefinite number of potential beneficiaries” that the Court of Appeals rejected more than seven decades ago in Moch. (247 NY at 168.)