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Hughes v. City of New York11/12/2002
This opinion is uncorrected and will not be published in the printed Official Reports.
Defendant Beyer Blinder Belle Architects and Planners LLP (BBB) moves for leave to renew and for dismissal pursuant to CPLR 3211 (a)(7), or, in the alternative, for summary judgment pursuant to CPLR 3212.
Facts
Plaintiffs sue for personal injuries allegedly sustained on December 12, 2000 as a result of a trip and fall by plaintiff Marion Hughes on the public sidewalk adjacent to a pedestrian path at Rockefeller Center, in front of 30 Rockefeller Plaza in midtown Manhattan. After attending a show at Radio City Music Hall with her husband and son, Marion Hughes and her family walked to Rockefeller Plaza to photograph the Rockefeller Center Christmas tree. Marion Hughes asserted at her deposition that she tripped and fell while walking forward with her camera in order to take a picture of her husband and son in front of the tree. She also indicated that she was looking straight ahead while walking toward the curb, but that she did not see the curb, because it blended in with the surrounding sidewalk and the pedestrian path.
BBB had designed the subject sidewalk and path pursuant to a Consulting Agreement to provide services to a non-party, Tishman Speyer Properties, L.P.
Plaintiffs allege that BBB negligently designed the sidewalk by combining paving materials in multiple colors, rendering the curb visually indistinguishable from sidewalk and the path by causing them to appear to be on the same horizontal plane.
BBB previously moved to dismiss, or, in the alternative, for summary judgment. BBB argued that it did not owe any duty to plaintiffs relating to its design of the sidewalk. Plaintiffs opposed the motion as premature, because they had not yet deposed BBB or obtained a copy of the Consulting Agreement. On June 11, 2002, this Court denied the motion without prejudice to renewal upon completion of disclosure, unaware that the parties had stipulated to adjourn the motion until June 18, 2002.
IBBB seeks leave to renew its motion for dismissal, or in the alternative, for summary judgment. A motion for leave to renew must be based on new or previously unavailable facts and a reasonable justification for the movant's failure to present such material on the prior motion. CPLR 2221. BBB submits a copy of the Consulting Agreement and explains that it did not provide it on the prior motion, because the Court inadvertently decided the motion, despite counsels' agreement for adjournment and because BBB did not have an opportunity to submit reply papers. Plaintiff does not oppose renewal. BBB's motion to renew is granted.
II.
BBB seeks dismissal, asserting that it does not owe any duty to plaintiffs in connection with its sidewalk design work because it contracted only with Tishman Speyer and had no contractual relationship with plaintiffs. BBB relies on Milliken & Co. v Consolidated Edison Co. of New York, Inc., (84 NY2d 469 ); Eaves Brooks Costume Co., Inc. v Y.B.H. Realty Corp., (76 NY2d 220 ); and H.R. Moch Co. v Rensselaer Water Co., (247 NY 160 ). These cases are inapposite. Milliken concerned whether a regulated utility owed a duty to plaintiffs, who were not parties to a contract between their landlord and the utility. In Eaves, the court found that defendant, who had inspected a sprinkler system under a contract with a landlord, did not owe a duty to plaintiff-tenant for damage from a defective sprinkler system. Those courts held that, based on the public policy of limiting legal consequences to a controllable degree, a defendant independent contractor did not owe a duty to plaintiff-tenants where plaint
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