Opinion
110556/01.
Decided November 12, 2002.
Kahn, Gordon, Timko Rodriguez, Esqs., New York, New York, for Plaintiff Hughes.
Michael A. Cardozo, Esq., Corporation Counsel, The City of New York, New York, New York, for Defendant The City of New York.
Jacobowitz, Garfinkel Lesman, Esqs., New York, New York, for Defendant RCPI Trust.
Buchanan, Ingersoll-Prof., Corp., New York, New York, for Defendant Beyer.
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 plaintiffs 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, 145 (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.
Whether those who constructed the sidewalk caused or contributed to its allegedly deceptive appearance, and whether plaintiff Marion Hughes exercised reasonable care, are also triable questions.
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.