        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1189
CA 13-00575
PRESENT: SMITH, J.P., CENTRA, FAHEY, CARNI, AND WHALEN, JJ.


CAMERON E. PARO, PLAINTIFF,

                    V                             MEMORANDUM AND ORDER

PIEDMONT LAND AND CATTLE, LLC, DEFENDANT.
------------------------------------------
PIEDMONT LAND AND CATTLE, LLC, THIRD-PARTY
PLAINTIFF-APPELLANT,

                    V

W.D. BACH EXCAVATING & CONSULTING, LLC,
THIRD-PARTY DEFENDANT-RESPONDENT.


KNYCH & WHRITENOUR, LLC, SYRACUSE (PETER W. KNYCH OF COUNSEL), FOR
DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT.

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (BRANDON R. KING OF
COUNSEL), FOR THIRD-PARTY DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Jefferson County (Hugh
A. Gilbert, J.), entered January 15, 2013. The order granted the
motion of third-party defendant for summary judgment dismissing the
third-party complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying that part of the motion
seeking summary judgment dismissing the claim for contribution and
reinstating the third-party complaint to that extent, and as modified
the order is affirmed without costs.

     Memorandum: Defendant-third-party plaintiff, Piedmont Land and
Cattle, LLC (Piedmont), the owner of a parking lot, entered a contract
with third-party defendant, W.D. Bach Excavating & Consulting, LLC
(Bach), pursuant to which Bach was to raze the structures that had
been on the property and to fill in all holes or voids that might
exist there. Pursuant to that contract, Bach leveled the buildings
and filled in certain holes not relevant herein. Plaintiff commenced
this action against Piedmont, seeking damages for injuries that he
sustained when his foot fell through a hole in the parking lot and
entered a hidden vault below it. Piedmont later commenced a third-
party action seeking contribution and common-law indemnification from
Bach. Piedmont appeals from an order granting Bach’s motion for
summary judgment dismissing the third-party complaint. We note at the
                                 -2-                          1189
                                                         CA 13-00575

outset that Piedmont does not challenge that part of the order
dismissing the claim for common-law indemnification, and thus it has
abandoned any contentions with respect to that claim (see Ciesinski v
Town of Aurora, 202 AD2d 984, 984). We agree with Piedmont that the
court erred in granting that part of the motion with respect to the
claim for contribution, and we therefore modify the order accordingly.

     We conclude that Bach met its initial burden on its motion with
respect to the claim for contribution by establishing its entitlement
to judgment as a matter of law dismissing that claim (see generally
Zuckerman v City of New York, 49 NY2d 557, 562). Specifically, Bach
established as a matter of law “that the injured plaintiff was not a
party to [the] contract . . . and that it thus owed no duty of care to
the injured plaintiff” (Rudloff v Woodland Pond Condominium Assn., 109
AD3d 810, 811; see Petito v City of New York, 95 AD3d 1095, 1096). In
opposition, however, Piedmont raised triable issues of fact to defeat
that part of the motion. Although plaintiff was a noncontracting
third party with respect to the construction contract between Bach and
Piedmont, Bach may still be liable if, “in failing to exercise
reasonable care in the performance of its duties, [it] ‘launche[d] a
force or instrument of harm’ ” (Espinal v Melville Snow Contrs., 98
NY2d 136, 140; see Church v Callanan Indus., 99 NY2d 104, 111), or
otherwise made the area “less safe than before the construction
project began” (Timmins v Tishman Constr. Corp., 9 AD3d 62, 67, lv
dismissed 4 NY3d 739, rearg denied 4 NY3d 795). Here, there are
issues of fact whether Bach negligently filled in the vault only
partially, and concealed its existence, thereby creating a force or
instrument of harm or otherwise making the area less safe than before
the demolition project began (see e.g. Schosek v Amherst Paving, Inc.,
11 NY3d 882, 883; Cornell v 360 W. 51st St. Realty, LLC, 51 AD3d 469,
470; cf. Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d 253,
257-258).

     We have considered Piedmont’s remaining contentions, and we
conclude that they are without merit or are moot in light of our
decision.




Entered:   November 15, 2013                    Frances E. Cafarell
                                                Clerk of the Court
