| Sainval-Brice v All Seasons Indus. Servs., Inc. |
| 2011 NY Slip Op 05478 [85 AD3d 1004] |
| June 21, 2011 |
| Appellate Division, Second Department |
| Jacqueline Sainval-Brice, Respondent, v All SeasonsIndustrial Services, Inc., et al., Appellants. |
—[*1] Mallilo & Grossman, Flushing, N.Y. (Joshua M. Lockamy of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Queens County (Rosengarten, J.), dated December 15, 2010, which deniedtheir motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
In the course of her employment at a school, the plaintiff allegedly was injured when her leftfoot got caught on a buckled mat on the lobby floor of the school. The defendants supplied areamats to the plaintiff's employer, including mats that were used in the lobby area where theplaintiff was injured.
"[A] contractual obligation, standing alone, will generally not give rise to tort liability infavor of a third party" (Stiver v Good &Fair Carting & Moving, Inc., 9 NY3d 253, 257 [2007] [internal quotation marksomitted]). However, 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 (1) thecontracting party, in failing to exercise reasonable care in the performance of its duties, launchesa force or instrument of harm, (2) the plaintiff detrimentally relies on the continued performanceof the contracting party's duties, or (3), the contracting party has entirely displaced the otherparty's duty to maintain the premises safely (see Espinal v Melville Snow Contrs., 98NY2d 136, 140 [2002]; Farrell v City ofNew York, 83 AD3d 655 [2011]; Conte v Servisair/Globeground, 63 AD3d 981, 982 [2009]).
The plaintiff contended that the defendants owed her a duty of care because they launched aforce or instrument of harm and, in effect, had entirely displaced her employer's duty to maintainthe premises safely. In support of their motion for summary judgment, the defendants made aprima facie showing of entitlement to judgment as a matter of law (see generally Alvarez vProspect Hosp., 68 NY2d 320 [1986]). The defendants established prima facie that they didnot have a contractual obligation to maintain the mats in question in a safe manner after delivery.Further, assuming such an obligation existed, the defendants nonetheless established that theyneither created nor had actual or constructive notice of the defective condition (see generally Kaehler-Hendrix v JohnsonControls, Inc., 58 AD3d 604, 606 [2009]). It would be speculative to assume that thedefendants created the alleged defect or had actual or constructive notice of the alleged defect,i.e., the buckling of the mat. The evidence showed that the defendants did not [*2]have sole control and possession over the mats at the school.Indeed, the plaintiff averred in her affidavit that, on a typical day, "approximately 200 adultstraverse through the hallway and onto the mat." While the subject mat was laid at the schoolthree days prior to the accident, someone walking in the lobby area could have kicked the mat,making it uneven, mere seconds before the plaintiff tripped. Furthermore, there was no evidencethat there was any visible defect in the mat to provide notice to the defendant (see Harbour v Oceanside Inst. Indus.,Inc., 74 AD3d 1023 [2010]; Rubin v Cryder House, 39 AD3d 840 [2007]; Larsen v Congregation B'Nai Jeshurun ofStaten Is., 29 AD3d 643 [2006]). Nor would a general awareness that floor matsoccasionally bunch be sufficient to constitute notice of the alleged dangerous condition whichproximately caused the plaintiff to trip (see Harbour v Oceanside Inst. Indus., Inc., 74 AD3d 1023 [2010];Kasner v Pathmark Stores, Inc., 18AD3d 440, 441 [2005]).
The defendants met their prima facie burden of showing that they did not launch a force orinstrument of harm by establishing that the mats were delivered in "excellent" condition, werelaid in a flat manner that was "flush" to the ground, and that they had no notice of any defect inthe mats, or as to how they were laid (see Harbour v Oceanside Inst. Indus., Inc., 74 AD3d 1023 [2010]).
In opposition to the defendants' prima facie showing, the plaintiff failed to raise a triableissue of fact.
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court should have granted the defendants' motion for summaryjudgment dismissing the complaint. Angiolillo, J.P., Balkin, Dickerson and Cohen, JJ., concur.