Suit Can Proceed Against General Contractor Based on Claims of Subcontractor’s Negligence and Public Nuisance

New York v. Shaw Contract Flooring Servs., 853 N.Y.S.2d 694 (N.Y. App. Div. 2008)

State university brought claims against a general contractor and subcontractor for asbestos released as a result of tile work performed by the subcontractor.  The trial court denied the general contractor’s motion to dismiss the negligence and public nuisance claims.  The Appellate Division affirmed.

The Appellate Division found that the university properly pled a negligence cause of action by alleging that the general contractor took over the tiling work from another entity, knew that the existing flooring contained asbestos, and that it and/or its agents performed the work in a dangerous manner.  The university properly pled a public nuisance cause of action by alleging that the contractor disregarded the rights of dormitory residents in the manner and conduct in which the general contractor performed the work.  The court also noted that the university submitted affidavits in support of its claims which, under CPLR 3211(a)(7), cured any defects in the complaint.

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