         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
335
CA 10-02164
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


SALLY SIEGL AND JOHN SIEGL, PLAINTIFFS,

                    V                              MEMORANDUM AND ORDER

NEW PLAN EXCEL REALTY TRUST, INC., DEFENDANT.
------------------------------------------------
NEW PLAN EXCEL REALTY TRUST, INC., THIRD-PARTY
PLAINTIFF-APPELLANT,

                    V

AALCO SEPTIC & SEWER, INC., THIRD-PARTY
DEFENDANT-RESPONDENT,
AND JAMES G. BONGIOVANNI, THIRD-PARTY DEFENDANT.


SASSANI & SCHENCK, P.C., LIVERPOOL (MITCHELL P. LENCZEWSKI OF
COUNSEL), FOR THIRD-PARTY PLAINTIFF-APPELLANT.

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (ALAN J. DEPETERS OF
COUNSEL), FOR THIRD-PARTY DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Livingston County
(Dennis S. Cohen, A.J.), entered September 14, 2010 in a personal
injury action. The order granted the motion of third-party defendant
AALCO Septic & Sewer, Inc. for summary judgment dismissing the amended
third-party complaint against it.

     It is hereby ORDERED that the order so appealed from is affirmed
without costs.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by Sally Siegl (plaintiff), who fell in a parking
lot owned by defendant-third-party plaintiff, New Plan Excel Realty
Trust, Inc. (New Plan). Third-party defendant AALCO Septic & Sewer,
Inc. (AALCO) had been hired by New Plan to repair a water main break
approximately two months before plaintiff fell, and AALCO had to dig a
hole in the parking lot to reach the broken water main. After
repairing the water main, AALCO refilled the hole and covered it with
crushed stones to make the area level to the rest of the parking lot.
According to New Plan, the stones thereafter settled and thereby
caused a depression in the parking lot, and that is the area where
plaintiff fell. New Plan appeals from an order granting AALCO’s
motion for summary judgment dismissing the amended third-party
complaint against it, which asserted, inter alia, a claim for common-
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                                                         CA 10-02164

law indemnification and a cause of action for contribution.   We
conclude that Supreme Court properly granted the motion.

     It is well settled that the “ ‘right of common-law
indemnification belongs to parties determined to be vicariously liable
without proof of any negligence or active fault on their part’ ”
(Brickel v Buffalo Mun. Hous. Auth., 280 AD2d 985, 985). “ ‘[W]here
one is held liable solely on account of the negligence of another,
indemnification, not contribution, principles apply to shift the
entire liability to the one who was negligent’ . . . Conversely, where
a party is held liable at least partially because of its own
negligence, contribution against other culpable tort-feasors is the
only available remedy” (Glaser v Fortunoff of Westbury Corp., 71 NY2d
643, 646). Here, even assuming, arguendo, that AALCO was negligent in
the performance of its duties under its oral contract with New Plan to
repair the water main in New Plan’s parking lot, we conclude that New
Plan was itself negligent in failing to conduct an adequate inspection
of its own parking lot and to remedy any defective conditions therein
(see generally Di Ponzio v Riordan, 89 NY2d 578, 582).

     We further conclude that New Plan is not entitled to contribution
from AALCO. “To sustain a third-party cause of action for
contribution, a third-party plaintiff is required to show that the
third-party defendant owed it a duty of reasonable care independent of
its contractual obligations, or that a duty was owed to the plaintiffs
as injured parties and that a breach of that duty contributed to the
alleged injuries” (Guerra v St. Catherine of Sienna, 79 AD3d 808, 809;
see Bruno v Price Enters., 299 AD2d 846). Here, AALCO did not owe a
duty of reasonable care independent of its obligations based on its
oral contract with New Plan. The record establishes as a matter of
law that AALCO was hired to repair the broken water main, not to
ensure that the hole in the parking lot surface was permanently
repaired, and that AALCO exercised reasonable care in the performance
of those contractual duties.

     We cannot agree with the dissent that AALCO failed to meet its
initial burden of establishing as a matter of law that it owed no duty
of care directly to the injured plaintiff (see generally Espinal v
Melville Snow Contrs., 98 NY2d 136). As a preliminary matter, we note
that New Plan did not raise that contention either before the motion
court or on appeal, and thus any such issue is not properly before us
(see Ciesinski v Town of Aurora, 202 AD2d 984). Indeed, New Plan
appears to concede on appeal that AALCO owed no duty to plaintiff,
stating in its brief that “the only relationship at issue before the
[c]ourt on the motion was the relationship between AALCO and New Plan”
(emphasis added).

     Even assuming, arguendo, that the issue addressed by the dissent
is properly before us, we conclude that it lacks merit. As the
dissent notes, “a party who enters into a contract to render services
may be said to have assumed a duty of care . . . to third [parties] .
. . where [that] party, in failing to exercise reasonable care in the
performance of [its] duties, ‘launche[s] a force or instrument of
harm’ ” (Espinal, 98 NY2d at 140, quoting Moch Co. v Rensselaer Water
                                  -3-                           335
                                                          CA 10-02164

Co., 247 NY 160, 168). In our view, however, AALCO established as a
matter of law that it did not launch a force or instrumentality of
harm, and New Plan failed to raise a triable issue of fact in
opposition. AALCO’s vice-president testified without contradiction
that, after refilling the hole with stone and leveling it with the
remainder of the parking lot, AALCO workers placed large barrels
around the area and cordoned it off with tape before leaving the work
site. At that point, AALCO’s duties under the contract were complete,
and it cannot be said that AALCO thereby placed anyone in danger. We
thus conclude that AALCO established as a matter of law that it
exercised reasonable care in the performance of its contractual
duties, which did not include the obligation to ensure that the
refilled hole remained forever level with the pavement in the parking
lot, and plaintiff failed to raise a triable issue of fact sufficient
to defeat the motion (see generally Zuckerman v City of New York, 49
NY2d 557, 562).

     All concur except PERADOTTO, J., who dissents in part and votes to
modify in accordance with the following Memorandum: I respectfully
dissent in part because, in my view, there is a question of fact
whether third-party defendant AALCO Septic & Sewer, Inc. (AALCO)
created the dangerous condition in question, thereby rendering it
liable for injuries sustained by Sally Siegl (plaintiff) (see Espinal
v Melville Snow Contrs., 98 NY2d 136, 141-142).

     Plaintiffs commenced this action seeking damages for injuries
that plaintiff sustained when she fell in a parking lot owned by
defendant-third-party plaintiff, New Plan Excel Realty Trust, Inc.
(New Plan). Approximately two months prior to the accident, New Plan
hired AALCO to repair a broken water main located underneath the
parking lot. To access the water main, AALCO cut through the pavement
and dug a hole in the parking lot that was approximately six feet long
by six feet wide and seven feet deep. After repairing the water main,
AALCO refilled the excavated area and topped it with “cold patch,”
i.e., a mixture of crushed stone and tar, which was then tamped down
and sealed. During the period of time between the placement of the
cold patch and plaintiff’s accident, the crushed stones apparently
settled, causing a depression in the parking lot in the area where
plaintiff fell. New Plan commenced a third-party action against AALCO
seeking, inter alia, common-law indemnification and contribution. In
its bill of particulars, New Plan alleged that AALCO “caus[ed] the
defect” in the parking lot by “failing to adequately and properly
refill the hole caused by their excavation work” and that AALCO
“created a hazardous depression in the parking lot . . . .”

     I agree with the majority that Supreme Court properly granted
that part of AALCO’s motion for summary judgment dismissing the
common-law indemnification claim against it inasmuch as “[t]he right
of common-law indemnification belongs to parties determined to be
vicariously liable without proof of any negligence or active fault on
their part” (Brickel v Buffalo Mun. Hous. Auth., 280 AD2d 985, 985
[emphasis added]). As the majority correctly notes, regardless of
AALCO’s negligence in the performance of its repair work, New Plan was
itself negligent in failing to conduct an adequate inspection of its
                                 -4-                           335
                                                         CA 10-02164

parking lot and in failing to remedy any defective conditions therein
(see generally Basso v Miller, 40 NY2d 233, 241).

     In my view, however, the court erred in granting that part of
AALCO’s motion for summary judgment dismissing the contribution cause
of action against it. It is well settled that “a party [that] 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 . .
. where the contracting party, in failing to exercise reasonable care
in the performance of [its] duties, ‘launche[s] a force or instrument
of harm’ ” (Espinal, 98 NY2d at 140, quoting Moch Co. v Rensselaer
Water Co., 247 NY 160, 168) or, in other words, where that party
creates or exacerbates a dangerous condition (see id. at 142-143).
Here, AALCO’s own submissions raised a triable issue of fact whether
it “launched an instrument of harm by creating or exacerbating a
hazardous condition,” i.e., the depression in the parking lot (Trzaska
v Allied Frozen Stor., Inc., 77 AD3d 1291, 1293; see Espinal, 98 NY2d
at 142-143; see also Miller v Pike Co., Inc., 52 AD3d 1240). In
support of its motion, AALCO submitted, inter alia, the deposition
testimony of one of New Plan’s maintenance workers, who testified that
he does not typically monitor areas of the parking lot that have been
treated with cold patch because cold patch “normally holds.” Here,
the cold patch allegedly settled approximately two inches within six
to eight weeks after it was applied by AALCO. In my view, the
development of such a significant depression within a relatively short
period of time warrants at least an inference of negligence on the
part of AALCO in filling the hole that it created, applying the cold
patch, tamping it down, and/or sealing the area. I thus conclude that
“there are triable issues of fact whether [AALCO] created or
exacerbated the allegedly dangerous condition that caused plaintiff to
fall” (Miller, 52 AD3d at 1240), precluding dismissal of the
contribution cause of action against it.

     I would therefore modify the order by denying that part of
AALCO’s motion for summary judgment dismissing the contribution cause
of action against it and reinstating that cause of action.




Entered:   May 6, 2011                          Patricia L. Morgan
                                                Clerk of the Court
