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Do You Even Care? (NY)

September 5, 2019

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<p style="text-align: justify;">In<em> <a href="">Rosen v Hilo Maintenance</a></em>, the New York Supreme Court addressed a third party contractor’s duty of care to a plaintiff injured on a jobsite.</p>
<p style="text-align: justify;">By way of background, plaintiff, Rosen, sued Hilo Maintenance, a third party contractor, to recover for alleged injuries that were sustained when he fell off of a loading dock ramp while he was working back in August 2014. In the plaintiff’s lawsuit, it was claimed that Hilo was negligent. Specifically, plaintiff claimed that Hilo did not repair the ramp’s hold-down mechanism properly.</p>
<p style="text-align: justify;">Eventually, Hilo moved for Summary Judgement arguing that it did not owe a duty to the plaintiff. Hilo claimed it never did any work on the alleged hold-down mechanism. The court did not agree with Hilo. The court found that an issue of fact existed and the case should proceed to trial. Specifically, the court found that the affidavits submitted by Hilo, in support of its Motion for Summary Judgment, were “conclusory, lacking in foundation, and speculative.”</p>
<p style="text-align: justify;">The court reasoned that even though Hilo demonstrated that it was an independent contractor hired by a non-party to repair its loading docks, Hilo did not establish that it did not “launch an instrument of harm, that plaintiff did not detrimentally rely on its contractual duties, and that it did not displace the property owner’s duty to safely maintain the premises.” These are the three main factors that are laid out in <em>Espinal v. Melville Snow Contrs. </em>regarding a third party contractor’s potential duty to a plaintiff.</p>
<p style="text-align: justify;">The take away here is simple. If you are a third party contractor looking to get out on Summary Judgement under <em>Espinal</em> make sure you conduct discovery thoroughly and have evidence showing there is no issue of fact, with respect to these aforementioned factors, as a court may determine any affidavits are “conclusory, lacking in foundation, and speculative” and are not going to cut it.</p>
<p style="text-align: justify;">Thank you to Marc Schauer for his contribution to this post.  Please email <a href="">Colleen E. Hayes</a> with any questions.</p>

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