Opinion
2014-02505
12-17-2014
Jennifer GLOVER, appellant, v. JOHN TYLER ENTERPRISES, INC., et al., defendants, One–A Cleaning & Maintenance Corp., respondent.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y. (Patrick M. Murphy of counsel), for respondent.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant.
McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y. (Patrick M. Murphy of counsel), for respondent.
PETER B. SKELOS, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, BETSY BARROS, JJ.
Opinion In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Lewis, J.), dated January 17, 2014, which granted the motion of the defendant One–A Cleaning & Maintenance Corp. for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed, with costs.
The plaintiff allegedly slipped on a wet floor at the premises of her employer. She commenced this action against, among others, One–A Cleaning and Maintenance Corp. (hereinafter One–A), which had contracted to provide cleaning services at the premises. After discovery was completed, One–A moved for summary judgment dismissing the complaint insofar as asserted against it. The Supreme Court granted the motion, and the plaintiff appeals.
Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138–139, 746 N.Y.S.2d 120, 773 N.E.2d 485 ; Bodenmiller v. Thermo Tech Combustion, Inc., 80 A.D.3d 719, 719, 915 N.Y.S.2d 312 ; Schwint v. Bank St. Commons, LLC, 74 A.D.3d 1312, 1313, 904 N.Y.S.2d 220 ). Nonetheless, the Court of Appeals has recognized three exceptions to this general rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties; and (3) where the contracting party has entirely displaced another party's duty to maintain the premises safely (see Espinal v. Melville Snow Contrs., 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 ; Baker v. Buckpitt, 99 A.D.3d 1097, 1098, 952 N.Y.S.2d 666 ). As part of its prima facie showing, a contracting defendant is only required to negate the applicability of those Espinal exceptions that were expressly pleaded by the plaintiff or expressly set forth in the plaintiff's bill of particulars (see Mathey v. Metropolitan Transp. Auth., 95 A.D.3d 842, 844, 943 N.Y.S.2d 578 ; Foster v. Herbert Slepoy Corp., 76 A.D.3d 210, 214, 905 N.Y.S.2d 226 ). Here, given the allegations in the complaint and the plaintiff's bill of particulars, One–A established its prima facie entitlement to judgment as a matter of law simply by offering sufficient proof that the plaintiff was not a party to its contract to clean the floor of the premises, and that it thus owed her no duty of care (see Knox v.
Sodexho Am., LLC, 93 A.D.3d 642, 642, 939 N.Y.S.2d 557 ; Henriquez v. Inserra Supermarkets, Inc., 89 A.D.3d 899, 901, 933 N.Y.S.2d 304 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Mathey v. Metropolitan Transp. Auth., 95 A.D.3d at 844, 943 N.Y.S.2d 578 ; cf. Bunting v. Haynes, 104 A.D.3d 715, 716–717, 961 N.Y.S.2d 290 ). Accordingly, the Supreme Court properly granted One–A's motion for summary judgment dismissing the complaint insofar as asserted against it.