Skip to Main Content
Services Talent Knowledge
Site Search


Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

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. 


Click here to sign up for alerts, blog posts, and firm news.

Featured Media


NYS Siting Board Grants Developer's Petition for Relief From County's Unreasonable Delay


Horseback Rider Assumes Risk of "Green Broke" Horse


New York Adult Survivors Act Set to Expire


NYS Appellate Court Reverses in Favor of Policyholder in Ensuing Loss Case


Temporary Health Care Staffing Agencies Can No Longer Charge for Hiring Their Personnel


The First Department Addresses When a Party Is Entitled to Treble Damages Pursuant to Judiciary Law §487

This site uses cookies to give you the best experience possible on our site and in some cases direct advertisements to you based upon your use of our site.

By clicking [I agree], you are agreeing to our use of cookies. For information on what cookies we use and how to manage our use of cookies, please visit our Privacy Statement.

I AgreeOpt-Out