Tesoriero v. ANMAC Holding Corp.

Summary

The Appellate Division, Second Department, affirmed an amended order granting Irwin Friedman & Son, Inc. summary judgment dismissing the personal-injury complaint against it. The court held that the contractor did not owe the decedent a duty of care under the Espinal framework because it completed its contracted pipe repair, backfilled the hole, and covered the area with plywood and cones, without undertaking responsibility to re-cement or maintain the site. The plaintiff failed to raise a triable issue of fact.

Holdings

1. The contractor did not owe the decedent a duty of care because it completed its contractual obligation to repair the pipe, backfill the hole, and cover the area with plywood and cones, was not retained to re-cement or maintain the premises, and did not launch a force or instrument of harm.
2. Summary judgment dismissing the complaint against the contractor was proper because the contractor established prima facie that it owed no duty of care, and the plaintiff failed to raise a triable issue of fact.

Questions Presented

1. Whether the contractor owed the decedent a tort duty of care for injuries allegedly arising from the unre-cemented hole after the contractor completed its contracted pipe-repair work.
2. Whether the contractor launched a force or instrument of harm sufficient to create an exception to the general rule that a contractual obligation alone does not give rise to tort liability to a third party.
3. Whether the contractor was entitled to summary judgment dismissing the complaint.

Disposition

affirmed