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December 28, 2021

Falling Facade Near Construction Zone Creates Issues of Fact

Recently, in Payne v. Murray, the Appellate Division, Second Department reversed a lower court order granting defendants Harris Water Main and Sewer Contractors’ (Harris) and Keyspan Energy Delivery’s (Keyspan) motions for summary judgment, finding that one defendant failed to make a prima facie showing of entitlement to summary judgment and that a question of material fact remained as to the other.

The plaintiff alleged injuries resulting from a piece of a Brooklyn brownstone facade that dislodged and hit him. He sued Harris and Keyspan, alleging that their excavation and construction work in the adjoining street created the dangerous condition by loosening the brownstone material and causing it to fall.

Keyspan presented an affidavit of a professional engineer opining that the work in the roadway did not create a dangerous condition. The Second Department found that this evidence was sufficient to establish its entitlement to judgment as a matter of law, but the plaintiff’s opposition, which included a contrary opinion of his own engineer, raised triable issues of fact.

In a separate motion, Harris, who had contracted with the building owners to complete work on a broken pipe connecting the building to the sewer line in the street, argued that it was free from tort liability as a contractor. The Second Department noted the general rule that a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party. An exception to this rule applies where the contracting party, in failing to exercise reasonable care in the performance of contractual duties, launches a force or instrument of harm. Harris’s summary judgment submissions, which did not include an expert affidavit, were insufficient to establish that its work in the roadway did not create or exacerbate the dangerous condition on the facade of the building, as the plaintiff had alleged.

The Payne decision is yet another example of the considerable hurdles a moving party must clear in order to prevail on a summary judgment. If a moving party fails to establish its prima facie entitlement to judgment as a matter of law, or if the opposition reveals the existence of issues of material fact, the motion must be denied.

If you have any questions regarding the content of this alert, please contact Elizabeth Vulaj, associate, at; Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at; or another member of the Torts & Products Liability Defense Practice Area. 


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