Opinion
2018–13084 Index No. 55742/16
04-29-2020
Nella CIKOJA, Appellant, v. DIEBOLD, INCORPORATED, Respondent.
Morgan Levine Dolan, P.C., New York, N.Y. (Joseph E. Gorczyca and Jeffrey L. Schulman of counsel), for appellant. Connors & Connors, P.C., Staten Island, N.Y. (Erik J. McKenna and Fred Cruz of counsel), for respondent.
Morgan Levine Dolan, P.C., New York, N.Y. (Joseph E. Gorczyca and Jeffrey L. Schulman of counsel), for appellant.
Connors & Connors, P.C., Staten Island, N.Y. (Erik J. McKenna and Fred Cruz of counsel), for respondent.
WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
ORDERED that the order is affirmed, with costs.
The plaintiff allegedly sustained personal injuries as she attempted to open the door of a portable vault during the course of her employment at a bank. The plaintiff commenced this action to recover damages for personal injuries against the defendant, which had an agreement with the plaintiff's employer to maintain the vault. The defendant moved for summary judgment dismissing the complaint, contending, inter alia, that it did not owe the plaintiff a duty of care. The Supreme Court granted the defendant's motion. The plaintiff appeals.
"[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party" ( Espinal v. Melville Snow Contrs. , 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485 ). "However, there are three exceptions to this general rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm or creates or exacerbates a hazardous condition; (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 the other party's duty to maintain the premises safely" ( Hagan v. City of New York , 166 A.D.3d 590, 592, 87 N.Y.S.3d 325 ; see Espinal v. Melville Snow Contrs. , 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 ). Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating, in response to the allegations in the plaintiff's pleadings, that it did not owe a duty of care to the plaintiff, who was not a party to the limited service agreement between the defendant and the plaintiff's employer (see generally Palka v. Servicemaster Mgt. Servs. Corp. , 83 N.Y.2d 579, 611 N.Y.S.2d 817, 634 N.E.2d 189 ), that it did not launch an instrument of harm (see generally Moch Co. v. Rensselaer Water Co. , 247 N.Y. 160, 159 N.E. 896 ; Barone v. Nickerson , 140 A.D.3d 1100, 1102, 32 N.Y.S.3d 663 ), and that the plaintiff did not detrimentally rely on the continued performance of its duties (see Santos v. Deanco Servs., Inc. , 104 A.D.3d 933, 934, 961 N.Y.S.2d 581 ; Huttie v. Central Parking Corp. , 40 A.D.3d 704, 706, 835 N.Y.S.2d 701 ). In opposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, we agree with the Supreme Court's determination to grant the defendant's motion for summary judgment dismissing the complaint.
MASTRO, J.P., MILLER, MALTESE and BRATHWAITE NELSON, JJ., concur.