Grove v. Cornell UniversityGrove v. Cornell University
It is hereby ordered that the order so appealed from is unanimously modified on the law by granting the motion of defendants Skyworks Equipment Leasing, LLC and Skyworks, LLC, dismissing the complaint and cross claims against them and denying that part of the motion of defendant JLG Industries, Inc. seeking leave to file a cross claim for contribution against those defendants, and as modified the order is affirmed without costs.
Memorandum: Plaintiff was injured when he fell from an elevated boom lift that he was using to install windows in a building under construction at defendant Cornell University (Cornell). At the time of the accident, plaintiff was employed as a glazier by a subcontractor hired by defendant Skanska USA Building, Inc. (Skanska), the general contractor on the construction project. The elevated boom lift was designed and manufactured by defendant JLG Industries, Inc. (JLG) and leased to plaintiff’s employer by defendants Skyworks Equipment Leasing, LLC, and Skyworks, LLC (collectively, Skyworks defendants).
Plaintiff originally commenced an action in Supreme Court, Tompkins County (Mulvey, J.), against only Cornell and Skanska, alleging common-law negligence and violations of
In addition, while the appeal to the Third Department was pending, plaintiff commenced an action in Supreme Court, Erie County, against the Skyworks defendants, JLG and another defendant that is no longer a party. In that action, plaintiff alleged that his injuries were the result of the defective condition of the boom lift. Plaintiff alleged causes of action for negligence and defective manufacture and design against JLG and negligence in the maintenance, repair, servicing and/or inspection of the boom lift against the Skyworks defendants. After the Court of Appeals reinstated the
JLG moved for summary judgment dismissing the complaint and cross claims against it, Cornell and Skanska cross-moved for summary judgment seeking a conditional order of indemnification against JLG, the Skyworks defendants moved for summary judgment dismissing the complaint and cross claims against them, and JLG moved separately for leave to assert cross claims for contribution against the other defendants. By the order on appeal, Supreme Court (Michalski, A.J.) granted JLG’s motion for leave to file cross claims for contribution and otherwise denied the motions and the cross motion.
Turning first to the appeal of the Skyworks defendants, we conclude that the court erred in denying their motion seeking summary judgment dismissing the complaint and the cross claims of Cornell and Skanska against them, and in granting that part of JLG’s motion seeking leave to assert a cross claim against the Skyworks defendants for contribution. The Skyworks defendants established as a matter of law that they did not owe plaintiff a duty of care based upon their obligations under the contract with plaintiff’s employer. As a general rule, a contractual obligation, standing alone, does not give rise to tort liability in favor of a third party (see Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d 253, 257 [2007]; Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, 226 [1990]), and the Skyworks defendants presented evidence demonstrating that none of the exceptions to that general rule applied here (see generally Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]). In response, plaintiff failed to raise a triable issue of fact. Further, there is no basis for JLG’s cross claim for contribution against the Skyworks defendants
With respect to the cross appeal of Cornell and Skanska, we conclude that the court properly denied their cross motion for summary judgment seeking a conditional order of indemnification against JLG. We agree with JLG that the stipulation between plaintiff, Cornell and Skanska dismissing the common-law negligence cause of action and
The court also properly granted that part of JLG’s motion seeking leave to assert a cross claim for contribution against Cornell and Skanska. That cross claim may be asserted despite the showing of Cornell and Skanska that they were not negligent. Under
Finally, with respect to the appeal of JLG, we conclude that the court properly denied that part of its motion seeking summary judgment dismissing the cross claim of Cornell and Skanska for common-law indemnification against it. Contrary to the contention of JLG, Cornell and Skanska are not barred by principles of judicial estoppel from contending that the boom lift was defective. Although those defendants took a contrary position in the original action in Tompkins County, that position did not prevail (see Baje Realty Corp. v Cutler, 32 AD3d 307, 310 [2006]), and thus all of the elements of judicial estoppel are not present (see generally Reynolds v Krebs, 143 AD3d 1256, 1256 [2016]). Nor would any negligence on plaintiff’s part defeat the cross claim of Cornell and Skanska for common-law indemnification from JLG (see generally Frank v Meadowlakes Dev. Corp., 6 NY3d 687, 693 [2006]).
The court also properly denied that part of JLG’s motion seeking summary judgment dismissing plaintiff’s manufacturing defect claim against it. JLG did not meet its burden with respect to that claim by merely establishing plaintiff’s failure to present evidence of a specific defect but, “[r]ather, [JLG] was required to come forward with evidence in admissible form establishing that plaintiff’s injuries were not caused by a manufacturing defect in the product” (Graham v Pratt & Sons, 271 AD2d 854, 854 [2000]).
Present—Whalen, P.J., Centra, Lindley, Troutman and Scudder, JJ.