| Fairclough v All Serv. Equip. Corp. |
| 2008 NY Slip Op 03953 [50 AD3d 576] |
| April 29, 2008 |
| Appellate Division, First Department |
| Tania P. Fairclough, Respondent, v All Service EquipmentCorp., Appellant. |
—[*1] Tiger & Daguanno, LLP, New York (Stephen B. Tiger of counsel), for respondent.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered May 15, 2007, whichdenied defendant's motion for summary judgment dismissing the complaint, unanimouslyreversed, on the law, without costs, the motion granted and the complaint dismissed. The Clerk isdirected to enter judgment accordingly.
Plaintiff, a sous chef at Houston's restaurant on East 53rd Street in Manhattan, was severelyburned on December 30, 2003, when a soup tureen containing au jus gravy, which was sitting ona four-burner gas stove in a pot of boiling water, fell and spilled boiling liquid on her. Theaccident was allegedly the result of a partially broken cast iron grate covering the stove burner,which was unstable when something was put on it. Plaintiff claimed that the grate had beenbroken for a couple of months prior to the accident.
Houston's had a commercial kitchen equipment service agreement with defendant coveringall food equipment then installed in the premises. In return for a fixed annual charge, defendantagreed to give Houston's preferential service, including regular on demand and emergencyservice whenever defendant was notified by Houston's, and to "provide optimum operatingefficiency per the manufacturers specifications to maintain it in good operating condition." Suchservice consisted of "inspection, lubrication and servicing on a quarterly basis," not including thecost of replacement parts and materials.
Defendant's service technician testified that he went to the restaurant on a regular basis toconsult with the manager or assistant manager on any problems with kitchen equipment, andperformed his own inspection to detect problems. He stated that he would service everything inthe kitchen, even equipment still under warranty from the manufacturer. He had been to thekitchen approximately one week before the accident, at which time he neither was advised aboutnor detected a defective stove grate.
In denying defendant's summary judgment dismissing the complaint, the motion court foundthat there were issues of fact as to whether defendant had a duty to plaintiff as a result of herdetrimental reliance on defendant's continued performance under its contract with her employer.
The existence and scope of an alleged tortfeasor's duty is, in the first instance, a legal [*2]question for determination by the court (see Di Ponzio vRiordan, 89 NY2d 578, 583 [1997]). The general rule is that a contractor does not owe aduty of care to a noncontracting third party, with three exceptions: first, "where the promisor,while engaged affirmatively in discharging a contractual obligation, creates an unreasonable riskof harm to others, or increases that risk" (Church v Callanan Indus., 99 NY2d 104, 111[2002]); second, where the plaintiff suffers injury as a result of reasonable reliance on thedefendant's continued performance of a contractual obligation; and third, "where the contractingparty has entirely displaced the other party's duty to maintain the premises safely" (id. at112, quoting Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]).
The facts presented here fail to fall within any of the three sets of circumstances that havebeen recognized as exceptions to the general rule. Although the agreement provided that it wouldautomatically terminate with no further responsibility by defendant if the covered equipment wasmoved or serviced by any other person, this is not the type of "comprehensive and exclusive"service agreement found by the Court of Appeals in Palka v Servicemaster Mgt. Servs.Corp. (83 NY2d 579, 588 [1994]), where the defendant's "extensive privatizationarrangement displaced entirely the hospital's prior in-house maintenance program and substitutedan exclusive responsibility in Servicemaster to perform all of Ellis Hospital's pertinentnonmedical, preventative, safety inspection and repair service functions" (id. at 584). Norcan it be said that defendant's performance or nonperformance of its contract "launched a force orinstrument of harm" (see Moch Co. v Rensselaer Water Co., 247 NY 160, 168 [1928]).
Finally, plaintiff's alleged detrimental reliance on defendant's continued performance of itsservice contract is belied by her deposition testimony that, although she repeatedly complained toHouston's supervisory personnel about the broken stove grate ("Had to be over ten times [amonth]"), she never once complained to defendant's servicemen, whom she regularly saw whenthey visited the kitchen on routine and other service calls. Concur—Andrias, J.P.,Friedman, Buckley, McGuire and Moskowitz, JJ.