Sears v. S3 Tunnel Construction AJV

Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered March 16, 2015, which, to the extent appealed from, denied defendant Metropolitan Transportation Authority’s (MTA) motion for summary judgment dismissing the complaint and all cross claims against it, unanimously affirmed, without costs.

Plaintiff seeks damages for injuries she allegedly sustained when a re-paved trench in the street collapsed under her; at the time, construction of the Second Avenue subway was taking place in the area.

MTA failed to establish prima facie that it owes no duty to plaintiff because neither it nor its contractors launched a force or instrument of harm in performing their contractual duties (see Espinal v Melville Snow Contrs., 98 NY2d 136 , 140 [2002]). While the record conclusively demonstrates that two of MTA’s contractors, defendants J. D’Annunzio & Sons, Inc. and S3 Tunnel Construction AJV, performed no work at the location where plaintiff fell, it also shows that there was a total of 10 contracts on the project, and MTA did not show that no work under any of the other contracts was done at that location. There is also evidence that other entities were performing excavation work within the area, and MTA did not show that

Concur — Mazzarelli, J.P., Acosta, Saxe, Kapnick and Kahn, JJ.