                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 7, 2016                    520793
________________________________

JESHUA O. DUNHAM,
                     Appellant,
     v                                       MEMORANDUM AND ORDER

KETCO, INC.,
                     Respondent.

(And a Third-Party Action.)
________________________________


Calendar Date:   November 16, 2015

Before:   McCarthy, J.P., Egan Jr., Rose, Lynch and Clark, JJ.

                              __________


      Schimmerling Injury Law Office, Delhi (Thomas E.
Schimmerling of counsel), for appellant.

      Napierski, VanDenburg, Napierski & O'Connor, LLP, Albany
(Eugene Daniel Napierski of counsel), for respondent.

                              __________


Clark, J.

      Appeal from an order of the Supreme Court (Lambert, J.),
entered December 12, 2014 in Delaware County, which granted
defendant's motion for summary judgment dismissing the complaint.

      In September 2005, plaintiff was injured as a result of a
car accident on State Route 357 in the Town of Franklin, Delaware
County. At the time of the accident, plaintiff was a passenger
in a vehicle operated by Joseph W. Dunham, plaintiff's father.
Defendant is a construction company that was working on the
portion of State Route 357 where the accident occurred. In
February 2010, plaintiff commenced this negligence action against
defendant, seeking to recover for injuries he sustained in the
                              -2-                520793

accident. Following joinder of issue, defendant moved for
summary judgment dismissing the complaint, which motion Supreme
Court granted. Plaintiff appeals.

      As an initial matter, we find no merit in plaintiff's
contention that Supreme Court erred or abused its discretion in
considering the affidavit of Bruce DiStefano, defendant's
president, in support of defendant's motion (see CPLR 3101 [d]
[1] [i]; Matott v Ward, 48 NY2d 455, 459 [1979]). Nor do we
agree that Supreme Court improperly relied upon hearsay within
DiStefano's affidavit. As relevant to plaintiff's contention,
DiStefano averred that Department of Transportation (hereinafter
DOT) inspectors sampled gravel and inspected and approved the
work that defendant performed on the construction project.
Inasmuch as DiStefano does not repeat any out-of-court
statements, the prohibition against hearsay does not apply
(compare Bergmann v Spallane, 129 AD3d 1193, 1197 [2015]). We
do, however, agree that the photographs attached to DiStefano's
affidavit were not properly authenticated and, as such, should
not have been considered in support of defendant's motion (see
Lewis v General Elec. Co. 145 AD2d 728, 729 [1988]).

      Turning to the merits, "to establish a prima facie
entitlement to judgment as a matter of law, defendant[ was]
required to tender sufficient, competent, admissible evidence
demonstrating the absence of any genuine issue of fact" (Rivera v
Albany Med. Ctr. Hosp., 119 AD3d 1135, 1136 [2014] [internal
quotation marks, brackets and citation omitted]). As relevant
here, "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 [or her] 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" (Espinal v Melville Snow
Contrs., 98 NY2d 136, 140 [2002] [internal quotation marks,
brackets and citations omitted]; see Baker v Buckpitt, 99 AD3d
1097, 1098 [2012]). "The general rule is that '[a] builder or
contractor is justified in relying upon the plans and
                               -3-                520793

specifications which he [or she] has contracted to follow unless
they are so apparently defective that an ordinary builder of
ordinary prudence would be put upon notice that the work was
dangerous and likely to cause injury'" (Henriquez v Parsippany
Constr. Co., Inc., 62 AD3d 749, 750 [2009], quoting Ryan v Feeney
& Sheehan Bldg. Co., 239 NY 43, 46 [1924] [citations omitted]).

      In support of its motion for summary judgment, defendant
submitted, among other things, the deposition testimony of
plaintiff, Dunham and DiStefano, as well as a police accident
report that indicated that Dunham's excessive speed caused the
accident. Defendant also submitted an affidavit from DiStefano
accompanied by the contract between DOT and defendant, along with
other attachments including the DOT Standard Specifications for
2002. In his affidavit, DiStefano averred that defendant entered
into a contract with DOT to replace certain bridges and that the
project "included [the] removal of a small hill" on State Route
357 where plaintiff's accident occurred. DiStefano stated that,
after the hill was removed, defendant placed gravel in the area,
creating a slope. He stated that the gravel was placed in
accordance with DOT's Standard Specifications for 2002 and that
it had been sampled by DOT to "ensure it complied with the
specifications." He attested that DOT inspectors, who were
present throughout the construction, inspected and approved the
gravel slope. He further averred that signs and barrels were
placed on the site in accordance with DOT specifications and,
according to DiStefano, "[a]t all times, an inspector and
engineer-in-charge on behalf of . . . DOT were on site inspecting
and approving the work that was performed as well as the
placement of the construction zone warning signs." DiStefano
further stated that defendant had not received any complaints
about the project and was paid by DOT upon completion.1
DiStefano opined that, "to a reasonable degree of professional
certainty[,] the pavement and hill were removed in accordance
with good and accepted practice" and that defendant was not
negligent. Inasmuch as defendant demonstrated that it followed
the DOT contract, its work was inspected and approved by DOT and


     1
        Neither party submitted any evidence from DOT to show
that it either had or had not approved defendant's work.
                              -4-                520793

it was not otherwise negligent, we agree with Supreme Court that
defendant carried its initial burden on its motion for summary
judgment (see Stevens v Bast Hatfield, Inc., 226 AD2d 981,
981-982 [1996]; Loconti v Creede, 169 AD2d 900, 903 [1991]).

      In opposition to defendant's motion for summary judgment,
plaintiff submitted, among other things, affidavits from Thomas
Worden and Dale Downin, two volunteer firefighters who responded
to the accident and who had personal recollections of the area
where the accident occurred. Worden described that, earlier in
the day prior to plaintiff's accident, the subject section of
State Route 357 had been lowered so that the gravel portion was
approximately three feet lower than the paved portion and the
ramp connecting the two was approximately 15 feet long. He
further averred that the speed limit was 55 miles per hour
(hereinafter mph), but that several cars traveling significantly
slower than the posted speed limit "bottom[ed] out" while he was
present. Worden explained that he, Downin and others stayed at
the accident site flagging traffic because of the road conditions
that night. Likewise, Downin described an uneven road with a
sharp drop off, "perhaps two feet deep," and described the
conditions on the evening in question as unsafe. Inasmuch as
they were based upon personal knowledge, both Worden's and
Downin's affidavits constituted more than mere speculation or
conclusions and were sufficient to defeat defendant's motion and
raise a question of fact (compare Maiorano v Price Chopper
Operating Co., 221 AD2d 698, 699 [1995]).

      As to defendant's argument that Dunham was the sole
proximate cause of the accident, "[w]here the acts of a third
person intervene between the defendant's conduct and the
plaintiff's injury, the causal connection is not automatically
severed. In such a case, liability turns upon whether the
intervening act is a normal or foreseeable consequence of the
situation created by the defendant's negligence. If the
intervening act is extraordinary under the circumstances, not
foreseeable in the normal course of events, or independent of or
far removed from the defendant's conduct, it may well be a
superseding act which breaks the causal nexus" (Derdiarian v
Felix Contr. Corp., 51 NY2d 308, 315 [1980] [citations omitted];
see Bowman v Kennedy, 126 AD3d 1203, 1204 [2015]; Markel Ins. Co.
                              -5-                520793

v Bottini Fuel, 116 AD3d 1143, 1146-1147 [2014]). Whether an
intervening act is a superseding cause is generally a question of
fact, but there are circumstances where it may be determined as a
matter of law (see Derdiarian v Felix Contr. Corp., 51 NY2d at
315; Carson v Dudley, 25 AD3d 983, 983-984 [2006]).

      Here, Dunham testified that he drove on the subject road
"[e]veryday, a couple times a day" and that he was aware that
there was ongoing road construction. He explained that, on the
day of the incident, he saw signs and barrels with flashing
lights indicating that there was construction, and that he saw
the hole in the road. He testified that he was traveling at 55
mph and slowed "maybe to 45" mph before the accident. He gave
conflicting testimony about whether he applied the brakes of the
vehicle at the time. He described how rather than traveling down
the ramp, the vehicle became airborne, and, when the vehicle
landed on the ground, the airbags deployed. When viewing all of
the evidence in the light most favorable to plaintiff, defendant
failed to establish that Dunham's conduct broke the chain of
causation stemming from defendant's alleged negligence as a
matter of law inasmuch as a question of fact exists with regard
to whether Dunham's speed was so unforeseeable as to break the
chain of causation (see Markel Ins. Co. v Bottini Fuel, 116 AD3d
at 1146-1147; Bailey v Honda Motor Co., 144 AD2d 119, 121 [1988],
lv denied 73 NY2d 705 [1989]). In our view, Worden's and
Downin's affidavits, in addition to Dunham's testimony, raise
sufficient factual issues making summary judgment inappropriate
here, and, therefore, Supreme Court should not have granted
defendant's motion for summary judgment dismissing the complaint
(see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman
v City of New York, 49 NY2d 557, 562 [1980]).

     Plaintiff's remaining contentions are without merit.

     McCarthy, J.P., Egan Jr., Rose and Lynch, JJ., concur.
                              -6-                  520793

      ORDERED that the order is reversed, on the law, without
costs, and motion denied.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
