| Vignapiano v Herbert Constr. Co. |
| 2007 NY Slip Op 09578 [46 AD3d 544] |
| December 4, 2007 |
| Appellate Division, Second Department |
| Marie Fiotto Vignapiano, Appellant, v HerbertConstruction Co. et al., Defendants, and Cushman Wakefield, Inc., et al.,Respondents. |
—[*1] Connors & Connors, P.C., Staten Island, N.Y., (David S. Heller of counsel), for respondentCushman Wakefield, Inc.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Kings County (Harkavy, J.), dated August9, 2006, as granted that branch of the motion of the defendants Cushman Wakefield, Inc., andState Street Bank and Trust Company of Connecticut, National Association, which was forsummary judgment dismissing the complaint insofar as asserted against the defendant CushmanWakefield, Inc.
Ordered that the order is affirmed insofar as appealed from, with costs.
Contrary to the plaintiff's contention, the Supreme Court properly granted that branch of themotion of the defendants Cushman Wakefield, Inc. (hereinafter Cushman & Wakefield), andState Street Bank and Trust Company of Connecticut, National Association, which was forsummary judgment dismissing the complaint insofar as asserted against Cushman & Wakefield."[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor ofa third party" (Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]; see EavesBrooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, 226 [1990]; Huttie v Central Parking Corp., 40AD3d 704, 705 [2007]). Cushman & Wakefield established its prima facie entitlement tojudgment as a matter of law by demonstrating that its management contract with the predecessorof the plaintiff's employer did not give rise to a [*2]duty of care tothe plaintiff. In opposition, the plaintiff failed to raise a triable question of fact as to whether shedetrimentally relied on Cushman & Wakefield's continued performance of its duties (seeChurch v Callanan Indus., 99 NY2d 104, 111-112 [2002]; Espinal v Melville SnowContrs., 98 NY2d at 140; Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76NY2d at 226). In her examination before trial, the plaintiff testified that approximately twomonths before the accident, she called "[b]uilding management" to express concern that theshelves in her office were slanted downward on the ends, and in response, someone inspected theshelves. However, the plaintiff only speculates that this inspector was an employee of Cushman& Wakefield, as opposed to an employee of her employer's in-house property managementdepartment. Further, even if the inspector was an employee of Cushman & Wakefield, theplaintiff did not raise a triable question of fact as to whether Cushman & Wakefield's allegednonfeasance in failing to discover the alleged defect in the shelves "launche[d] a force orinstrument of harm" (Espinal v Melville Snow Contrs., 98 NY2d at 140 [internalquotation marks omitted]; see Church v Callanan Indus., 99 NY2d at 112). Nor did theplaintiff raise a question of fact as to whether Cushman & Wakefield entirely displaced the dutyof the plaintiff's employer to maintain the premises safely (see Espinal v Melville SnowContrs., 98 NY2d at 140; Church v Callanan Indus., 99 NY2d at 112). Not only didher employer maintain an in-house property management department at all relevant times, but themanagement contract at issue provided that the plaintiff's employer retained substantial controlover the management and operation of the premises (see Roveccio v Ry Mgt. Co., Inc., 29 AD3d 562, 562-563 [2006];Hagen v Gilman Mgt. Corp., 4AD3d 330, 331 [2004]; cf. Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579[1994]). Crane, J.P., Fisher, Carni and McCarthy, JJ., concur.