The moving defendant was hired by defendant property owner "to perform, inter alia, masonry work on the premises." Plaintiff, walking past the construction site "was injured when he was struck by a fence door" which, moving defendant, plaintiff alleged, failed to repair. That's it.
The court reminds us that contractual obligations "standing alone" do not bestow tort liability as to third parties, like plaintiff here. Unless, that is, in seeing to its contractual obligations, the contracting party either fails to "exercise reasonable care in the performance of his duties, launching "a force or instrument of harm, or acts so as to "entirely displace[ ] the other party's duty to maintain the premises safely." You know, like in Espinal. But what if neither of those things happen, as in this case?
AD2 explains that plaintiff here raised a triable issue of fact as to whether the contractor "launched a force or instrument of harm by failing to properly repair the fence door."
The best we can fathom is that the spirit of Judge Cardozo in Moch v. Rensselaer (1928) is alive and well in Brooklyn . . . and we are thankful.