Sapone
v.
Commercial Building Maintenance

Appellate Division of the Supreme Court of New York, Second DepartmentJun 7, 1999
262 A.D.2d 393 (N.Y. App. Div. 1999)
262 A.D.2d 393691 N.Y.S.2d 148

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Submitted April 21, 1999

June 7, 1999

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated May 28, 1998, which denied its motion for summary judgment dismissing the complaint.

Morrison, Mahoney Miller, New York, N.Y. (Michael D. Kestan and Karen L. Lynch of counsel), for appellant.

Richard M. Bronstein, Central Islip, N.Y., for respondent.

SONDRA MILLER, J.P., THOMAS R. SULLIVAN, WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO, SANDRA J. FEUERSTEIN, JJ.


DECISION ORDER

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

On May 5, 1995, the plaintiff allegedly suffered personal injuries when she slipped and fell because of debris on the floor of her employer's building. At the time, a contract was in effect between her employer, NYNEX, and the defendant Commercial Building Maintenance Corp. (hereinafter CBMC) pursuant to which CBMC was to provide certain services, specifically, "House Services, Lawn Care, Snow Removal, Pest Control, [and] Lighting replacements", at a number of NYNEX buildings, including the one in which the plaintiff was injured. Effective July 6, 1993, the contract was modified, and CBMC was to clean the subject buildings only three times per week, Monday, Wednesday, and Friday. CBMC was to clean the building in which the plaintiff was injured between 6:00 A.M. and 9:00 A.M.

The plaintiff commenced the instant action against CBMC alleging, inter alia, that CBMC was negligent "in failing to sweep the floor and clear the debris for an extended period of time prior to the accident". CBMC moved for summary judgment dismissing the complaint on the ground that it owed no duty of care to the plaintiff. The Supreme Court denied the motion. We reverse.

The Court of Appeals has stated that "the definition of the existence and scope of an alleged tortfeasor's duty is usually a legal, policy-laden declaration reserved for Judges to make" ( Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 585; see, Di Ponzio v. Riordan, 89 N.Y.2d 578, 583). The determination as to whether an alleged tortfeasor owes an injured party a duty "rest[s] on policy considerations of whether plaintiff's interests are entitled to legal protection against defendant's conduct" ( Eiseman v. State of New York, 70 N.Y.2d 175, 189-190; see, Eaves Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d 220, 226; Strauss v. Belle Realty Co., 65 N.Y.2d 399, 402-403; De Angelis v. Lutheran Med. Ctr., 58 N.Y.2d 1053, 1055).

In the instant case, the Supreme Court erred in denying the motion by CBMC for summary judgment, as the limited contract between CBMC and NYNEX which was in effect on the date that the plaintiff was injured was not "a comprehensive and exclusive property maintenance obligation which the parties could have reasonably expected to displace [the property owner's] duty, as a landowner, to maintain the property safely" ( Riekers v. Gold Coast Plaza, 255 A.D.2d 373 [2d Dept., Nov. 9, 1998]; Girardi v. Bank of N.Y. Co., 249 A.D.2d 443, 444; Miranti v. Brightwaters Racquet Spa, 246 A.D.2d 518, 519; Keshavarz v. Murphy, 242 A.D.2d 680, 681; cf., Crosby v. Ogden Servs. Corp., 236 A.D.2d 220).