| Kotara v City of New York |
| 2009 NY Slip Op 09622 [68 AD3d 1063] |
| December 22, 2009 |
| Appellate Division, Second Department |
| Robert Kotara, Respondent, v City of New York et al.,Respondents, and Drain Kleen Sewer Service, Inc., Appellant. |
—[*1] Greenstein & Milbauer, LLP, New York, N.Y. (Andrew Bokar of counsel), forplaintiff-respondent. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Mordecai Newman of counsel;Brian Soucek on the brief), for defendants-respondents.
In an action to recover damages for personal injuries, the defendant Drain Kleen SewerService, Inc., appeals, as limited by its reply brief, from so much an order of the Supreme Court,Kings County (Rothenberg, J.), dated November 14, 2008, as denied its motion, in effect, forsummary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and themotion of the defendant Drain Kleen Sewer Service, Inc., in effect, for summary judgmentdismissing the complaint insofar as asserted against it is granted.
Generally, a contractual obligation, standing alone, will not give rise to tort liability in favorof a third party (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]).However, a party who enters into a contract to render services may be said to have assumed aduty of care and, thus, may be potentially liable in tort to third persons where (1) the contractingparty, in failing to exercise reasonable care in the performance of its duties, launches a force orinstrument of harm, (2) the plaintiff detrimentally relies on the continued performance of thecontracting party's duties, or (3) the contracting party has entirely displaced the other party's dutyto maintain the premises safely (see Espinal v Melville Snow Contrs., 98 NY2d at 140).Here, the appellant established its entitlement to judgment as a matter of law by demonstrating,prima facie, that none of the exceptions are applicable to this case (see Alvarez v ProspectHosp., 68 NY2d 320 [1986]). In opposition, the respondents failed to raise a triable issue offact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Rivera, J.P., Miller, Leventhaland Chambers, JJ., concur.