Opinion
03-16-2017
AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, etc., et al., Plaintiffs–Respondents, v. MOTIVATED SECURITY SERVICES, INC., Defendant–Appellant.
Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Marcia K. Raicus of counsel), for appellant. Canter Law Firm, P.C., White Plains (Nelson E. Canter of counsel), for respondents.
Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Marcia K. Raicus of counsel), for appellant. Canter Law Firm, P.C., White Plains (Nelson E. Canter of counsel), for respondents.
Order, Supreme Court, New York County (Gerald Lebovits, J.), entered on or about August 16, 2016, which denied defendant's motion to dismiss the complaint, unanimously affirmed, with costs.
Although, in support of its motion to dismiss, defendant demonstrated that plaintiff SBF is not an intended third-party beneficiary of defendant's security contract with a nonparty (see generally Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., 66 N.Y.2d 38, 43–45, 495 N.Y.S.2d 1, 485 N.E.2d 208 [1985] ; see also Bernal v. Pinkerton's, Inc., 52 A.D.2d 760, 382 N.Y.S.2d 769 [1st Dept.1976], affd. 41 N.Y.2d 938, 394 N.Y.S.2d 638, 363 N.E.2d 362 [1977] ), plaintiffs' complaint, as supplemented by the affidavit of SBF's president (see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ), sufficiently alleges a cause of action for negligence. In particular, plaintiff sufficiently alleges that SBF detrimentally relied upon defendant's performance of its contractual duties (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ). While defendant contends that the security contracts did not require it to patrol the lot where the subject crane was stored, the documents do not conclusively establish that its responsibilities were so limited (see Leon, 84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). Further, the complaint and affidavit adequately show that plaintiffs had "actual knowledge" of the security contracts, as required to establish detrimental reliance (Aiello v Burns Intl. Sec. Servs. Corp., 110 A.D.3d 234, 246, 973 N.Y.S.2d 88 [1st Dept.2013] ).
The motion court properly considered the out-of-state affidavit of SBF's president, even though it lacks a certificate of conformity (CPLR 2309 [c] ). The lack of such certification is not a fatal defect and the irregularity may be corrected later (see Matapos Tech. Ltd. v. Compania Andina de Comercio Ltda, 68 A.D.3d 672, 673, 891 N.Y.S.2d 394 [1st Dept.2009] ; CPLR 2001 ).
TOM, J.P., ACOSTA, RICHTER, MANZANET–DANIELS, KAHN, JJ., concur.