The following e-filed documents, listed by NYSCEF document number (Motion 001) 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 66, 68, 69, 72, 73, 74, 78 were read on this motion to/for DISMISSAL. The following e-filed documents, listed by NYSCEF document number (Motion 002) 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 65, 67, 70, 71, 75, 76, 77, 79 were read on this motion to/for JUDGMENT — SUMMARY. DECISION + ORDER ON MOTION Upon the foregoing documents and oral argument heard on 05/15/2024, Defendant, Dom’s Lawnmaker, Inc., (hereinafter “Defendant — Dom’s Lawnmaker”), Defendant, Dom’s Reliable Landscaping, Inc. (hereinafter “Defendant — Dom’s Reliable”), and Defendant-NYU Langone Hospital’s (hereinafter “Defendant — NYU”) motions for summary judgment and dismissal of Plaintiff, Patrick Tahany’s claims pursuant to CPLR §3212 are granted. To succeed on a motion for summary judgment, the moving party must make a prima facie showing of entitlement to summary judgment as a matter of law by demonstrating the absence of any material issues of fact. See generally Friends of Thayer Lake LLC v. Brown, 27 N.Y.3d 1039 (2016). Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824 (2014); CPLR §3212(b). “If the moving party makes out a prima facie showing, the burden then shifts to the non-moving party to establish the existence of material issues of fact which preclude judgment as a matter of law.” Jacobsen, 22 N.Y.3d at 833. If there are no material, triable issues of fact, summary judgment must be granted. See Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 (1957). Defendant — Dom’s Lawnmaker Inc. In Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136 (2002), the Court of Appeals defined the circumstances in which a party who enters a contract assumes a duty of care to persons outside the contract. The Espinal court ruled that, “[a] party who entered into a contract to render services may be said to have assumed a duty of care — and thus be potentially liable in tort — to third persons: (1) where the contracting party in failing to exercise reasonable care in the performance of his duties, ‘launches a force or instrument of harm’, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties, and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely.” Id. at 141. This Court finds that Defendant — Dom’s Lawnmaker met its prima facie burden, and no material issue of fact exists. Defendant — Dom’s Lawnmaker was contracted by The City of New York to remove a tree stump from the accident site 18 months prior to the accident. It is undisputed that Defendant — Dom’s Lawnmaker completed the work it was contracted to perform; the work was inspected by an independent inspector as well as a New York City Park’s Department inspector; the work was approved by both inspectors; and Defendant — Dom’s Lawnmaker was paid for the work. Plaintiff and Defendant — The City of New York (hereinafter “Defendant — The City”) argue in their opposition that there is a question of fact regarding whether Defendant — Dom’s Lawnmaker caused or created the condition and whether Defendant — Dom’s Lawnmaker exercised reasonable care when removing the tree stump. However, sworn testimony by John Mueller, a New York City Parks Department employee confirmed that inspection of the tree stump removal and subsequent payment is indicative that the work contracted for was completed and no remedial measures were required. See NYSCEF Doc. No. 41. This Court finds that Defendant — Dom’s Lawnmaker presented sufficient evidence to show that no material fact is in dispute as to whether it exercised reasonable care when removing the tree stump or caused or created the condition since Defendant — Dom’s Lawnmaker was discharged from its contractual obligation 18 months prior to the accident. Thus, Defendant — Dom’s Lawnmaker’s motion for summary judgment to dismiss all claims against it is granted in its entirety. Defendant — Dom’s Reliable Landscaping Inc. This Court finds ample cause to grant Defendant — Dom’s Reliable Landscaping, Inc.’s application for dismissal. The First Department held that “privity between a plaintiff and a defendant is required to support a breach of contract claim.” See Tutor Perini Bldg. Corp. v Port Auth. Of N.Y. & N.J., 191 A.D.3d 569, 571 (1st Dep’t 2021). There is no privity of contract between Defendant — Dom’s Reliable and The City of New York. Defendant — Dom’s Reliable was not contracted by The City of New York to complete the tree stump removal and was not involved in the work completed by Defendant — Dom’s Lawnmaker. Defendant — Dom’s Reliable maintains a separate payroll and has separate employees from Defendant — Dom’s Lawnmaker. Thus, Defendant — Dom’s Reliable’s unopposed motion for summary judgment and dismissal of all claims against it is granted in its entirety. Defendant — NYU Langone Hospital The New York Court of Appeals has held that a property owner’s duty under §7-210 to maintain the abutting sidewalk does not extend to tree wells. Vuvetovic v. Epsom Downs, Inc., 10 N.Y.3d 517 (2008). The court in Vuvetovic stated that “an abutting landowner could be held liable only if the owner affirmatively created the dangerous sidewalk condition, negligently made repairs or used the sidewalk in a special manner for its own benefit.” Id. at 520. Defendant — The City and Plaintiff argue that there is a material fact in dispute as to whether Defendant — NYU installed the tree grate that surrounded the tree well and launched an instrumentality of harm that caused or created the injurious condition by failing to maintain the area. Defendant — The City and Plaintiff state that if Defendant — NYU installed the tree grate, it made special use of the area, which it could be held liable for if it failed to maintain the tree grate. Defendant — NYU maintains its position that it did not cause or create the condition because the tree grate was not defective nor the proximate cause of Plaintiff’s injury. This Court finds that Defendant — NYU met its prima facie burden and there is no material fact in dispute because the defective tree well condition was the proximate cause of the accident since Plaintiff sustained injuries from tripping over a hole in the tree well. Defendant — NYU did not have a duty to maintain the tree well, rather it is Defendant — The City’s responsibility under §7-210. Defendant — NYU met its burden by showing that it did not launch an instrumentality of harm to cause or create the injurious condition based on the photographs of the tree gate. The photographs show a hole in the tree well rather than a defective tree grate. Thus, Defendant — NYU’s motion for summary judgment is granted in its entirety. Accordingly, it is hereby ORDERD that Defendant — Dom’s Lawnmaker’s motion for summary judgment and dismissal is granted; it is further ORDERD that Defendant — Dom’s Reliable’s motion for summary judgment and dismissal is granted; it is further ORDERED Defendant — NYU’s motion for summary judgment and dismissal is granted, it is further ORDERED that the action is severed and continued against the remaining Defendant — The City of New York; it is further ORDERED that the caption be amended to reflect said dismissals and that all future papers filed with the court bear the amended caption; ORDERED that the caption is amended to read as follows: PATRICK TAHANY, Plaintiff v. THE CITY OF NEW YORK, Defendant. ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the Clerk of the Court, who are directed to mark the court’s records to reflect the change in the caption herein; and it is further ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk’s Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the “E-Filing” page on the court’s website). This constitutes the Decision and Order of the Court. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: June 6, 2024
