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ALTHOUGH PLAINTIFF WAS A THIRD-PARTY BENEFICIARY OF A CONTRACT BETWEEN THE DEFENDANT AND THE COUNTY, PLAINTIFF SUED ON A NEGLIGENCE THEORY ONLY; THE NEGLIGENCE COMPLAINT PROPERLY SURVIVED SUMMARY JUDGMENT, CRITERIA EXPLAINED (THIRD DEPT).

The Third Department determined plaintiff’s negligence claim arising from a contract properly survived summary judgment. Plaintiff qualified for the Home Energy Assistance Program. Pursuant to that program, defendant installed a chimney liner pursuant to a contract with the county. Although plaintiff was a third-party beneficiary of the that contract and could have sued on that ground, plaintiff’s complaint sounded only in negligence:

Plaintiff could have … asserted a claim for breach of contract, but limited herself to a claim for negligence that will not lie “unless a legal duty independent of the contract itself has been violated” … . It must, as a result, be shown that defendants owed a duty of care to plaintiff “spring[ing] from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract” … .

In assessing whether such a duty existed, we note that defendants were engaged to install a stainless steel liner in plaintiff’s chimney “in a professional manner.” Plaintiff alleges that the contracted-for work was done improperly and prevented the adequate venting of furnace exhaust. She also alleges deficiencies beyond that work, however, contending that defendants negligently failed to address visible deterioration of the chimney and surrounding roof that allowed water to infiltrate the home and caused mold growth that damaged both the home and the personalty within it. In response to defendants’ motion for summary judgment, plaintiff provided the affidavit of an engineer who opined that the obvious problems with the roof and chimney should have been addressed by defendants while they were repairing adjacent parts of the chimney. … It is further notable that the work was paid for by public funds and aimed at helping plaintiff meet her “immediate home energy needs” (42 USC § 8621 [a]), both of which show a “public interest in seeing it performed with reasonable care” … . Jones v County of Chenango, 2020 NY Slip Op 01229, Third Dept 2-20-20

 

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