| Gamarra v Top Banana, LLC |
| 2008 NY Slip Op 03299 [50 AD3d 425] |
| April 15, 2008 |
| Appellate Division, First Department |
| Gustavo Gamarra, Respondent, v Top Banana, LLC, et al.,Defendants, and Circle Rubbish of New York, Appellant. |
—[*1] Philip J. Sporn & Associates, Bronx (Robert J. DiGianni, Jr. of counsel), forrespondent.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered June 26,2007, which, to the extent appealed from, denied defendant Circle Rubbish of New York's crossmotion for summary judgment dismissing the complaint, unanimously reversed, on the law,without costs, and the motion granted. The Clerk is directed to enter judgment in favor of CircleRubbish dismissing the complaint as against it.
Circle Rubbish, which contracted with defendant Hunt's Point Terminal Market CooperativeAssociation to provide street cleaning services at the market, demonstrated that none of thesituations in which a contractor of this type may be said to have assumed a duty of care, and thusto be potentially liable in tort to third persons, is present here (see Espinal v Melville SnowContrs., 98 NY2d 136, 140 [2002]). There is no evidence that Circle Rubbish launched "aforce or instrument of harm" (Moch Co. v Rensselaer Water Co., 247 NY 160, 168[1928]), that plaintiff detrimentally relied on the continued performance of Circle Rubbish'sduties under its contract with Hunt's Point, or that that contract was comprehensive and exclusiveand therefore gave rise to a duty on Circle Rubbish's part that displaced either owner's normalduty to maintain [*2]the premises in a safe manner (see Palkav Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 589 [1994]). Concur—Lippman,P.J., Tom, Williams and Acosta, JJ.