| Gordon v Pitney Bowes Mgt. Servs., Inc. |
| 2012 NY Slip Op 02633 [94 AD3d 813] |
| April 10, 2012 |
| Appellate Division, Second Department |
| Irene Gordon, Respondent, v Pitney Bowes ManagementServices, Inc., et al., Appellants. |
—[*1] Gary S. Alweiss, Garden City, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Nassau County (Adams, J.), entered January 14, 2011, which denied theirmotion, inter alia, for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The defendants provided mail sorting and delivery services for the plaintiff's employer at theoffice location at which the plaintiff worked and allegedly was injured. The plaintiff alleged thatthe defendants' placement of a white corrugated plastic mail bin "one step" from the opening ofher cubicle created a dangerous tripping hazard. Following the completion of discovery, thedefendants moved, inter alia, for summary judgment dismissing the complaint. The SupremeCourt denied the motion, concluding that the defendants failed to meet their prima facie burden.The defendants appeal. We affirm, albeit for reasons different from those stated by the SupremeCourt.
Ordinarily, a contractual obligation will not be sufficient in and of itself to impose tortliability on noncontracting third parties (see Church v Callanan Indus., 99 NY2d 104, 111[2002]; Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]; Schwint v Bank St. Commons, LLC,74 AD3d 1312 [2010]; DePascale vE&A Constr. Corp., 74 AD3d 1128 [2010]). There are three exceptions to this generalrule: (1) where the contracting party, in failing to exercise reasonable care in the performance ofhis duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies onthe continued performance of the contracting party's duties, and (3) where the contracting partyhas entirely displaced the other party's duty to maintain the premises safely (see Church vCallanan Indus., 99 NY2d at 111; Espinal v Melville Snow Contrs., 98 NY2d at 140;Sainval-Brice v All Seasons Indus.Servs., Inc., 85 AD3d 1004 [2011]; Bono v Halben's Tire City, Inc., 84 AD3d 1137 [2011]; Izzo v Proto Constr. & Dev. Corp., 81AD3d 898 [2011]).
Contrary to the Supreme Court's determination, because the plaintiff failed to allege facts inher complaint or in her bill of particulars which would establish that any of the exceptions inEspinal v Melville Snow Contrs. (98 NY2d at 140), and its progeny applied herein, thedefendants [*2]demonstrated their prima facie entitlement tojudgment as a matter of law merely by coming forward with proof that the plaintiff was not aparty to the contract between the defendants and the plaintiff's employer (see Henriquez v Inserra Supermarkets,Inc., 89 AD3d 899 [2011]; Rubistello v Bartolini Landscaping, Inc., 87 AD3d 1003 [2011]; Foster v Herbert Slepoy Corp., 76AD3d 210, 214 [2010]). Once the defendants made their prima facie showing, "the burdenshifted to the plaintiff to come forward with evidence sufficient to raise a triable issue of fact asto the applicability of one or more of the [above] three . . . exceptions" (Foster vHerbert Slepoy Corp., 76 AD3d at 214).
In opposition to the defendants' prima facie showing, the plaintiff raised a triable issue offact. Viewing the evidence in the light most favorable to the plaintiff and affording her thebenefit of every favorable inference (seeRuiz v Griffin, 71 AD3d 1112, 1115 [2010]; Franklin v 2 Guys From Long Pond, Inc., 50 AD3d 846 [2008]), wefind that the plaintiff raised a triable issue of fact as to whether the defendants, in failing toexercise reasonable care in the performance of their duties, launched a force or instrument ofharm (see Espinal v Melville Snow Contrs., 98 NY2d 136 [2002]).
The Supreme Court properly rejected the defendants' contention that they had no duty toprotect or warn against the condition complained of because it was open and obvious and notinherently dangerous. The issue of whether a dangerous condition is open and obvious isfact-specific, and usually a question for a jury (see Villano v Strathmore Terrace Homeowners Assn., Inc., 76 AD3d1061 [2010]; Shah v Mercy Med.Ctr., 71 AD3d 1120 [2010]). The question cannot be divorced from the surroundingcircumstances. Moreover, "[a] condition that is ordinarily apparent to a person makingreasonable use of his or her senses may be rendered a trap for the unwary where the condition isobscured or the plaintiff is distracted (Shah v Mercy Med. Ctr., 71 AD3d at 1120; seeVillano v Strathmore Terrace Homeowners Assn., Inc., 76 AD3d at 1061).
Here, the defendants failed to eliminate all triable issues of fact as to whether the conditionwas open and obvious or was rendered a trap due to its close proximity to the plaintiff's cubicleopening which allegedly obscured her line of sight (see Clark v AMF Bowling Ctrs., Inc., 83 AD3d 761 [2011]; Beck v Bethpage Union Free SchoolDist., 82 AD3d 1026, 1028 [2011]; Davarashvili v ABM Indus. Inc., 81 AD3d 776 [2011]; Villanov Strathmore Terrace Homeowners Assn., Inc., 76 AD3d at 1062; Gradwohl v Stop & Shop Supermarket Co.,LLC, 70 AD3d 634, 635 [2010]).
The defendants' remaining contentions are without merit.
Accordingly, the Supreme Court properly denied the defendants' motion. Mastro, A.P.J.,Angiolillo, Eng and Cohen, JJ., concur.