Opinion
2020–03832 Index No. 504540/15
02-08-2023
Wyatt H. JOHNSON, appellant, v. ACUMEN CAPITAL PARTNERS, LLC, et al., respondents (and a third-party action).
The Rybak Firm, PLLC, Brooklyn, NY (Maksim Leyvi of counsel), for appellant. Cartafalsa, Turpin & Lenoff, New York, NY (Kristine M. Taylor of counsel), for respondents Acumen Capital Partners, LLC, and ACP BK I, LLC. Marin Goodman, LLP, Harrison, NY (Alexander J. Drago of counsel), for respondent Securitas Security Services USA, Inc.
The Rybak Firm, PLLC, Brooklyn, NY (Maksim Leyvi of counsel), for appellant.
Cartafalsa, Turpin & Lenoff, New York, NY (Kristine M. Taylor of counsel), for respondents Acumen Capital Partners, LLC, and ACP BK I, LLC.
Marin Goodman, LLP, Harrison, NY (Alexander J. Drago of counsel), for respondent Securitas Security Services USA, Inc.
VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, DEBORAH A. DOWLING, HELEN VOUTSINAS, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Kathy J. King, J.), dated May 12, 2020. The order, insofar as appealed from, granted those branches of the motion of the defendants Acumen Capital Partners, LLC, and ACP BK I, LLC, and the separate motion of the defendant Securitas Security Services USA, Inc., which were for summary judgment dismissing the amended complaint insofar as asserted against each of them. ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendant Securitas Security Services USA, Inc., which was for summary judgment dismissing the amended complaint insofar as asserted against it, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiff, payable by the defendant Securitas Security Services USA, Inc., and one bill of costs to the defendants Acumen Capital Partners, LLC, and ACP BK I, LLC, payable by the plaintiff.
In June 2013, the plaintiff allegedly sustained personal injuries when he was struck by a security gate barrier arm that was lowering as he walked underneath it. The defendants Acumen Capital Partners, LLC, and ACP BK I, LLC (hereinafter together the Acumen defendants), owned the parking lot where the alleged incident occurred. At the time of the accident, the defendant Securitas Security Services USA, Inc. (hereinafter Securitas), provided security services at the parking lot and managed the guard house at the entryway pursuant to a security services agreement (hereinafter the security agreement).
The plaintiff commenced this action against the Acumen defendants, and later amended the complaint to add Securitas as a defendant. Thereafter, the Acumen defendants moved, and Securitas separately moved, inter alia, for summary judgment dismissing the amended complaint insofar as asserted against each of them. The Supreme Court granted those branches of the separate motions, and the plaintiff appeals.
A landowner has a duty to maintain its premises in a reasonably safe manner (see Flores v. Harvest Moon Farm & Orchard, 206 A.D.3d 623, 624, 169 N.Y.S.3d 134 ; Locke v. Calamit, 175 A.D.3d 560, 561, 104 N.Y.S.3d 908 ). "However, there is no duty to protect or warn against an open and obvious condition that, as a matter of law, is not inherently dangerous" ( Robbins v. 237 Ave. X, LLC, 177 A.D.3d 799, 799, 113 N.Y.S.3d 235 ; see Flores v. Harvest Moon Farm & Orchard, 206 A.D.3d at 624, 169 N.Y.S.3d 134 ).
Here, the Acumen defendants established, prima facie, their entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against them by demonstrating (1) that the barrier arm was an open and obvious condition, and (2) that it was not inherently dangerous as a matter of law (see Everett v. CMI Servs. Corp., 206 A.D.3d 620, 621, 170 N.Y.S.3d 132 ; Lonigro v. TDC Elecs., Inc., 215 A.D.2d 534, 536, 627 N.Y.S.2d 695 ). The Acumen defendants also demonstrated, prima facie, that they did not create the alleged condition and that they did not have actual or constructive notice of the alleged dangerous condition's existence (see Nelson v. AMF Bowling Ctrs., Inc., 206 A.D.3d 929, 930, 170 N.Y.S.3d 595 ; Rojecki v. Genting N.Y., LLC, 176 A.D.3d 992, 993, 112 N.Y.S.3d 243 ). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the Acumen defendants’ motion which was for summary judgment dismissing the amended complaint insofar as asserted against them (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ).
"[A] contractual obligation, standing alone, will generally not give rise to ... liability in favor of a third party" ( Espinal v. Melville Snow Contrs., Inc., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485 ; see Balagyozyan v. Federal Realty L.P., 191 A.D.3d 749, 751–752, 142 N.Y.S.3d 77 ). However, a contracting party may be held liable to third persons "where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, launche[s] a force or instrument of harm" ( Espinal v. Melville Snow Contrs., 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [internal quotation marks omitted]; see Balagyozyan v. Federal Realty L.P., 191 A.D.3d at 752, 142 N.Y.S.3d 77 ).
Here, Securitas established its prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against. Securitas demonstrated that it did not owe a duty of care to the plaintiff, since the plaintiff was not a party to the security agreement (see Sampaiolopes v. Lopes, 172 A.D.3d 1128, 1130, 101 N.Y.S.3d 77 ). Securitas further submitted evidence to establish that the barrier arm's descent was automatic, refuting allegations that its employees were negligent in operating the barrier arm. However, in opposition to Securitas's prima facie showing, the plaintiff raised triable issues of fact, inter alia, as to whether the barrier arm was in fact automatic or whether it was manually operated and, if its descent was manual, whether Securitas's employees launched a force or instrument of harm by negligently operating the barrier arm (see generally Espinal v. Melville Snow Contrs., 98 N.Y.2d at 142, 746 N.Y.S.2d 120, 773 N.E.2d 485 ; Kaziu v. Human Care Servs. for Families & Children, Inc., 167 A.D.3d 588, 90 N.Y.S.3d 66 ). Accordingly, the Supreme Court erred in granting that branch of Securitas's motion which was for summary judgment dismissing the amended complaint insofar as asserted against it.
In light of the foregoing, we need not reach the plaintiff's remaining contentions.
BRATHWAITE NELSON, J.P., RIVERA, DOWLING and VOUTSINAS, JJ., concur.