Opinion
2003-01601
Submitted May 20, 2003.
June 16, 2003.
In an action to recover damages for wrongful death and personal injuries, etc., the defendant Baker Engineering NY, Inc., appeals from so much of an order of the Supreme Court, Westchester County (Donovan, J.), entered January 24, 2003, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.
Malapero Prisco, LLP, New York, N.Y. (Mark A. Bethmann of counsel), for appellant.
O'Connor, Redd, Gollihue Sklarin, LLP, White Plains, N.Y. (Richard S. Sklarin of counsel), for respondent.
Before: SANDRA J. FEUERSTEIN, J.P., WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO, SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendants is severed.
The plaintiff's decedent, a construction worker, died as a result of injuries which he sustained when he was caught between a 35-ton crane and a traffic barrier. The plaintiff brought this action against multiple defendants, including the appellant, Baker Engineering NY, Inc. (hereinafter Baker), to recover damages, inter alia, for wrongful death. The New York State Department of Transportation (hereinafter the DOT) had retained Baker as consulting engineer on the construction project on which the plaintiff's decedent was working when he died. Pursuant to the contract, Baker was required to inspect the work of the contractor on the project.
The Supreme Court erred in denying Baker's motion for summary judgment dismissing the complaint insofar as asserted against it. "[I]t is well settled that liability for an injury sustained by a worker may not be imposed upon an engineer who was hired to assure compliance with construction plans and specifications, unless the engineer commits an affirmative act of negligence or such liability is imposed by a clear contractual provision" (Domenech v. Associated Engineers, 257 A.D.2d 403, 403-404; see Suriano v. City of New York, 240 A.D.2d 486, 487; Prado v. Bowne Sons, 207 A.D.2d 875, 875-876; Brooks v. A. Gatty Serv. Co., 127 A.D.2d 553, 554; see also Fecht v. City of New York, 244 A.D.2d 315; cf. D'Andria v. County of Suffolk, 112 A.D.2d 397) . Here, there is no evidence that Baker committed any affirmative act of negligence, and nothing in the contract between it and the DOT imposes any liability on it. Moreover, contrary to the plaintiff's contention, Baker did not exercise supervision and control over the activity resulting in the decedent's injury and death (see Harvey v. Sear-Brown Group, 262 A.D.2d 1006; Fecht v. City of New York, supra; Giordano v. Seeyle, Stevenson Knight, 216 A.D.2d 439, 440). Baker made out a prima facie case for summary judgment. In opposition, the plaintiff did not raise a triable issue of fact. Accordingly, Baker's motion for summary judgment dismissing the complaint insofar as asserted against it should have been granted.
FEUERSTEIN, J.P., FRIEDMANN, LUCIANO and TOWNES, JJ., concur.