DiMaggio v. Skanska USA Building, Inc.

Appellate Division of the Supreme Court of New York

DiMaggio v. Skanska USA Building, Inc.

2017 NY Slip Op 2369, 148 A.D.3d 600, 50 N.Y.S.3d 345

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 28, 2017

Docket3521 150387/13

StatusPublished

This text of 2017 NY Slip Op 2369 (DiMaggio v. Skanska USA Building, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

DiMaggio v. Skanska USA Building, Inc., 2017 NY Slip Op 2369, 148 A.D.3d 600, 50 N.Y.S.3d 345 (N.Y. Ct. App. 2017).

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Opinion

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered October 9, 2015, which, to the extent appealed from as limited by the briefs, denied the branch of defendant Park Avenue Building & Roofing Supplies, Inc.’s (Park Avenue) motion for summary judgment that sought dismissal of the common-law negligence claim and the common-law indemnification and contribution cross claims against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of Park Avenue dismissing the complaint and all cross claims against it.

Plaintiff, employed by a nonparty, testified that he fell after he picked up a pipe, stepped to his right, and slipped on a muddy, softball-sized, chopped-up piece of concrete. Plaintiff never testified that he could not use lifting equipment available to him because of the way the pipes had been stacked. Accordingly, the connection between Park Avenue’s alleged negligence in placing the pipes and plaintiff’s injury is too attenuated to conclude that Park Avenue’s malfeasance proximately caused the accident (see Escalet v New York City Hous. Auth., 56 AD3d 257, 258 [1st Dept 2008]).

Concur — Friedman, J.P., Sweeny, Renwick, Andrias and Manzanet-Daniels, JJ.

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Order, Supreme Court, New York County (Joan M. Kenney, J.), entered October 9, 2015, which, to the extent appealed from as limited by the briefs, denied the branch of defendant Park Avenue Building & Roofing Supplies, Inc.’s (Park Avenue) motion for summary judgment that sought dismissal of the common-law negligence claim and the common-law indemnification and contribution cross claims against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of Park Avenue dismissing the complaint and all cross claims against it.

Plaintiff, employed by a nonparty, testified that he fell after he picked up a pipe, stepped to his right, and slipped on a muddy, softball-sized, chopped-up piece of concrete. Plaintiff never testified that he could not use lifting equipment available to him because of the way the pipes had been stacked. Accordingly, the connection between Park Avenue’s alleged negligence in placing the pipes and plaintiff’s injury is too attenuated to conclude that Park Avenue’s malfeasance proximately caused the accident (see Escalet v New York City Hous. Auth., 56 AD3d 257, 258 [1st Dept 2008]).

Concur — Friedman, J.P., Sweeny, Renwick, Andrias and Manzanet-Daniels, JJ.

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Bluebook (online)

2017 NY Slip Op 2369, 148 A.D.3d 600, 50 N.Y.S.3d 345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dimaggio-v-skanska-usa-building-inc-nyappdiv-2017.