Appellate Team Successfully Obtained Dismissal in Personal Injury Matter
The SACS Litigation/Appellate Strategy & Advocacy Group secured a victory for its client, a general contractor, in the Appellate Division, Second Department, which upheld dismissal of the complaint upon the contractor’s directed verdict motion. Plaintiff commenced an action against the general contractor, carpeting subcontractor and carpentry subcontractor after she was injured when she tripped and fell over a height differential between two floors in her place of employment. At the close of evidence at trial, the trial court granted defendant’s motion for judgment as a matter of law on the grounds that it did not owe plaintiff, a non-contracting third-party, any duty under Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136 (2002).
In unanimously affirming the dismissal, the Court agreed that the general contractor did not “launch a force or instrument of harm” because it did not perform the actual work that created the alleged defective condition. The Court also found that plaintiff did not rely on the contractor’s continuing performance and that general contractor’s work did not displace the employer’s responsibility to maintain its premises. Finally, the Court noted that plaintiff was not an intended third-party beneficiary of the contract between the employer and contractor.
The appeal was briefed by Chris Simone and Rob Ortiz.