10-4754-cv
In Re Lake George Tort Claims

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1 .
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 9th day of February, two thousand twelve,

Present:        JOHN M. WALKER, JR.,
                ROSEMARY S. POOLER,
                DEBRA ANN LIVINGSTON,
                          Circuit Judges.

_____________________________________________________

IN RE LAKE GEORGE TORT CLAIMS

                                                                            10-4754-cv


Appearing for Appellant:          James E. Hacker, Thomas D. Buchanan, Hacker Murphy, LLP,
                                  Latham, N.Y.

Appearing for Appellee:           Jeffrey Ian Carton, Joanna Frances Sandolo, Meiselman, Denlea,
                                  Packman, Carton & Eberz P.C., White Plains, N.Y.

     Appeal from the United States District Court for the Northern District of New York
(McAvoy, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

       Plaintiffs-appellants Leo Urbaniak, et al., appeal the grant of a motion for summary
judgment in favor of defendant-appellee Scarano Boat Building, Inc. (“Scarano”), in their
negligence action brought under New York law. We assume the parties’ familiarity with the
underlying facts, procedural history, and specification of issues for review.

        We review a district court’s grant of summary judgment de novo. New York v. Nat'l
Serv. Indus., Inc., 460 F.3d 201, 206 (2d Cir. 2006). “Summary judgment is warranted when,
after construing the evidence in the light most favorable to the non-moving party and drawing all
reasonable inferences in its favor, there is no genuine issue as to any material fact.” Guest v.
Hansen, 603 F.3d 15, 20 (2d Cir. 2010); Fed. R. Civ. P. 56(c). “[T]here is no issue for trial
unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for
that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

        Appellants’ claims arise under the New York law of negligence. Under that law, “[i]n
order to set forth a prima facie case of negligence, the plaintiff's evidence must establish (1) the
existence of a duty on defendant's part as to plaintiff; (2) a breach of this duty; and (3) that such
breach was a substantial cause of the resulting injury.” Merino v. N.Y.C. Transit Auth., 218 A.D.
2d 451, 457 (N.Y. App. Div. 1996), aff’d 89 N.Y. 2d 824 (1996).“Because a finding of
negligence must be based on the breach of a duty, a threshold question in tort cases is whether
the alleged tortfeasor owed a duty of care to the injured party.” Espinal v. Melville Snow
Contractors, 98 N.Y. 2d 136, 138 (2002). “The existence and scope of an alleged tortfeasor's
duty is, in the first instance, a legal question for determination by the courts.” Sanchez v. State of
New York, 99 N.Y. 2d 247, 252 (2002) (internal citation omitted).

         Under New York law a contractual duty alone will not give rise to tort liability in favor
of a third party. Espinal, 98 N.Y. 2d at 138. Because Scarano’s only duty to build the canopy
arose out of its contract with Shoreline, it can only be liable if it falls into one of the exceptions
to a contractor’s general lack of duty to third parties. A “party who enters 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, launche[s] 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 140 (alteration in original) (citations and internal quotation marks omitted).
Appellants argue that Scarano launched a force or instrument of harm when it built a canopy that
was unsafe for a forty-eight passenger boat, or, in the alternative, that it launched a force of harm
when it failed to conduct or recommend a stability test.

        We agree with the district court’s determination that the relevant comparison for this
analysis is the boat with the old canopy versus the boat with the Scarano-constructed canopy.
Appellants concede that there is no admissible evidence as to the old canopy’s weight. There can
accordingly be no comparison of the danger posed by that canopy versus the new one, and thus,
there can be no triable issue of fact as to whether Scarano had created or exacerbated a
dangerous condition by building and installing the second canopy. While there may be “some
metaphysical doubt as to the material facts,” “the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986). Accordingly, there can be no issue for trial. Scarano
cannot be said to have launched a force or instrument of harm by building the canopy and thus
had no duty to appellants.

        Appellants attempt to sidestep this conclusion by arguing with renewed force on appeal
that the dangerous condition created by Scarano was the direct result of its failure to conduct or
to recommend a stability test. But such an argument necessarily fails if appellants’ argument as
to the canopy itself does. If Scarano launched a force of harm by building the canopy, then its

                                                  2
failure to stop that force of harm by recommending the stability test would be part and parcel of
its original negligence. But if it did not launch a force of harm, as we have concluded was the
case, then any failure to stop that force was at most withholding a benefit. Only if “conduct has
gone forward to such a stage that inaction would commonly result, not negatively merely in
withholding a benefit, but positively or actively in working an injury, [does] there exist[] a
relation out of which arises a duty to go forward.” Moch Co. v. Rensselaer Water Co., 247 N.Y.
160, 167 (1928) (Cardozo, C.J). As noted, appellants concede that no admissible evidence has
been presented as to the weight of the vessel with the old canopy; accordingly, there is no
evidence enabling a jury to find that Scarano “actively. . . work[ed] an injury.” Id.

         We have examined the remainder of appellant’s arguments and find them to be without
merit.

         Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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