Second Department Affirms Lower Court’s Dismissal of Plaintiff’s Negligence Claim In Case Involving Plaintiff Motorcyclist Who Struck Construction Barrel On Expressway

In a decision dated April 12, 2023, the Appellate Division, Second Department affirmed the Order of the Supreme Court, Kings County which granted our client CCA Civil-Halmar’s (“CCA”) motion for summary judgment dismissing the negligence action.  At approximately 12:15 a.m., the plaintiff was operating a motorcycle traveling on the Cross Bronx Expressway in the Bronx when, approximately 200 to 300 feet past the end of a temporary lane closure, his front tire ran over a flattened construction barrel that was situated across the center and right lanes of the three-lane roadway, causing him to lose control of his vehicle and fall to the ground.  CCA was a contractor on the New York State Department of Transportation’s (“NYSDOT”) project to rehabilitate a portion of the Cross Bronx Expressway.  

The plaintiff alleged that CCA was negligent by failing to adhere to the contract plans and specifications for placement and maintenance of construction barrels for the temporary lane closure.  The Second Department held that CCA satisfied its summary judgment burden by submitting evidentiary proof that, in performing its contracted work on the Project, its use of construction barrels complied with New York State Standard Specifications and the NYSDOT’s Work Zone Traffic Control Plan, and NYSDOT inspectors had approved the work. The Court held that plaintiff’s opposition failed to raise a triable issue of fact because there was no evidence that CCA’s use of construction barrels contravened the contract plans and specifications. The Second Department also held that the plaintiff failed to raise a triable issue of fact whether CCA launched a force or instrument of harm by failing to adhere to the contract plans and specifications and, therefore, CCA owed no duty to the plaintiff.

Elias Corniel, et al. v. CCA Civil-Halmar International, LLC, 215 A.D.3d 731, — N.Y.S3d— (2d Dep’t 2023)

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This post was written by Sander Rothchild