| Mosca v OCE Holding, Inc. |
| 2010 NY Slip Op 02760 [71 AD3d 1103] |
| March 30, 2010 |
| Appellate Division, Second Department |
| Yvonne D. Mosca et al., Respondents, v OCE Holding,Inc., Appellant. |
—[*1] Martino & Weiss, Mount Vernon, N.Y. (Douglas J. Martino of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from anorder of the Supreme Court, Westchester County (Liebowitz, J.), dated June 1, 2009, whichdenied its motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff Yvonne D. Mosca (hereinafter the plaintiff) allegedly tripped and fell aftercatching her foot under a rail extending horizontally from the base of a photocopier. Thereafter,the plaintiff and her husband, suing derivatively, commenced this action against the defendant,the company which provided repair services for the photocopier. The defendant moved forsummary judgment dismissing the complaint, and the Supreme Court denied its motion.
While we affirm the order appealed from, we do so on a ground other than that relied uponby the Supreme Court. A party who enters into a contract to render services may be said to haveassumed a duty of care, and thus be potentially liable in tort, to third persons where, inter alia,"the contracting party, in failing to exercise reasonable care in the performance of his duties,launche[s] a force or instrument of harm" (Espinal v Melville Snow Contrs., 98 NY2d136, 140 [2002] [internal quotation marks omitted]). Here, in moving for summary judgment, thedefendant failed to establish, prima facie, that it did not create or exacerbate a dangerouscondition so as to have launched a force or instrumentality of harm (id.; Rina vWindemere Home Owners Assn., Inc., 66 AD3d 756, 757 [2009]; Cornell v 360 W. 51stSt. Realty, LLC, 51 AD3d 469 [2008]; Prenderville v International Serv. Sys., Inc.,10 AD3d 334, 337 [2004]). Accordingly, the Supreme Court properly denied the defendant'smotion for summary judgment dismissing the complaint (see generally Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]). In light of this determination, we need not examine thesufficiency of the plaintiff's opposition papers (see Alvarez v Prospect Hosp., 68 NY2dat 324; Rapps v City of New York, 54 AD3d 923, 924 [2008]). Mastro, J.P., Miller,Austin and Roman, JJ., concur.