“Winne v Town of Duanesburg 2011 NY Slip Op 05927 Decided on July 14, 2011 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.
Defendant Town of Duanesburg entered into a contract with defendant John M. McDonald Engineering, P.C. (hereinafter defendant) to design a new sewer system for a portion of the Town and oversee its implementation. The Town entered into a separate contract with defendant Florida Gulf Construction Company, doing business as Cranbrook Construction (hereinafter Cranbrook), to construct the system. The project required Cranbrook to place main sewer lines in the roadways, with lateral sewer lines running from the main line to the boundaries of privately-owned properties in the sewer district. Defendant’s plans called for the individual property owners to place a Town-issued, two-by-two wooden stake where they wanted the lateral line to enter their property. Cranbrook would install a lateral line from the main line to the edge of the road at the location on the property line marked by the homeowner’s stake. Cranbrook would put the end of a two-by-four wooden stake at the end of the lateral line and backfill the hole, with the dirt supporting the stake. That stake marked the spot where the homeowner would later need to connect the home’s sewer pipes to the lateral line.
After receiving notice and a stake from the Town, plaintiff contacted a private contractor to place her stake in a location designating where the sewer should be connected to her home. They placed the stake near her house, about 8 to 10 feet from her driveway. Apparently, rather than installing the lateral and placing a two-by-four stake where plaintiff’s two-by-two stake had been located, Cranbrook drove its stake into the middle of plaintiff’s asphalt driveway. The stake was also not placed along the edge of the road at plaintiff’s property line, as was customary; the stake was pounded into her driveway about five feet from the edge of the road. Plaintiff sustained injuries when, unaware that a stake had been placed in her driveway, she tripped over it. She commenced this action to recover for her injuries. Cranbrook cross-claimed against its codefendants for contribution. Defendant moved for summary judgment dismissing both the complaint and Cranbrook’s cross claim against it. Supreme Court denied the motion. Defendant appeals.”
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