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Hughes v. City of New York11/12/2002
iffs and landlord were in a better position to insure against a risk. Milliken, at 478; Eaves at 226-27. In Moch, the court held that defendant, a water supply company under contract to a city, was not liable for damages to a resident for failure to supply water adequate to extinguish a fire. The Moch court held that the failure to supply water constituted the denial of a benefit but did not constitute an actionable wrong, essentially for public policy reasons of limiting utilities' tort liability.
In contrast, New York courts have held that architects or builders, like manufacturers of consumer products, may be held accountable in negligence to ultimate users injured by a defective product. Inman v Binghamton Housing Authority, 3 NY2d 137, 155 (1957). In Cubito v Kreisberg, (69 AD2d 738 [2d Dept 1979] affd 51 NY2d 900 ), the court examined the statute of limitations for architectural negligence applicable to a plaintiff not in privity with the architect. The court applied to architects the principle that "a manufacturer is obligated to exercise that degree of care in his plan or design so as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger," and declared that the liability of an architect to a third party depends on whether the architect "exercised due care in preparing his plans." Id. at 745; see also Schilling v Warwick Constr., Inc., 193 AD2d 594 (2d Dept 1993) (triable issue of fact existed as to whether defendant architectural company breached duty of care owed to a plaintiff pedestrian for the allegedly negligent design of a sidewalk, driveway and ramp system which caused runoff water to pool and freeze on the walking surface).
Accordingly, an architect who prepares plans and specifications is under a duty to use that degree of care that would have been exercised by a reasonably prudent architect to make the envisioned site or structure reasonably safe for intended users. The plans must provide for a design that prevents an unreasonable risk of foreseeable harm. The architect who designs a sidewalk owes that duty of care not only to the client who commissioned the design, but to those pedestrians who foreseeably use the sidewalk for its expected, intended purpose.
Simply put, BBB owed a duty of care to plaintiff Marion Hughes, because she was a foreseeable user of the sidewalk. In light of the proof submitted on this motion, whether the concept or execution of this polychrome designer sidewalk caused a deceptive visual pattern that concealed the curb so as to constitute a hidden hazard or trap, is a triable factual question. It cannot be said here that plaintiff has not demonstrated the existence of a cognizable, litigable cause of action. BBB has not demonstrated entitlement to judgment as a matter of law.
Accordingly, it is hereby
ORDERED that the motion by defendant Beyer Blinder Belle Architects and Planners LLP for leave to renew, is granted; and it is further
ORDERED that, upon renewal, the motion by that defendant for an order dismissing the action, or, in the alternative, granting summary judgment, is denied.
This constitutes the decision and order of the Court.
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