| All Am. Moving & Stor., Inc. v Andrews |
| 2012 NY Slip Op 05241 [96 AD3d 674] |
| June 28, 2012 |
| Appellate Division, First Department |
| All American Moving and Storage, Inc., et al.,Plaintiffs, v W. Reilly Andrews et al., Defendants. (And Other Actions.) JeromeAckerman et al., Respondents, v D'Agostino Supermarkets, Inc., et al., Respondents, and AllstateSprinkler Corp., Appellant. |
—[*1] Salamon, Gruber, Blaymore & Strenger, P.C., Roslyn Heights (Sanford Strenger of counsel),for Ackerman respondents. Torino & Bernstein, P.C., Mineola (Charles R. Strugatz of counsel), for D'AgostinoSupermarkets, Inc., respondent. Lester Schwab Katz & Dwyer LLP, New York (Steven B. Prystowsky of counsel), forMetropolitan Security Storage, Ltd., respondent. Speyer & Perlberg, LLP, Melville (Marie E. Garelle of counsel), for New York Marine &General Insurance Company, respondent.
Order, Supreme Court, Bronx County (Dominic R. Massaro, J.), entered June 17, 2010, [*2]which, insofar as appealed from as limited by the briefs, denieddefendant Allstate Sprinkler Corp.'s motion for summary judgment dismissing the claims andcross claims asserted against it in action No. 3 and for conditional summary judgment on its crossclaim for contractual indemnification against defendant D'Agostino Supermarkets, Inc., in actionNo. 3, unanimously affirmed, without costs.
In this action to recover damages arising out of a warehouse fire, Allstate failed to establishas a matter of law that it did not owe the noncontracting respondents a duty of care or breach anyduty owed. The record shows that Allstate owed plaintiffs—owners of theproperty—a duty of care, as plaintiffs were third-party beneficiaries to the sprinklerinspection services contract between Allstate and defendant tenant D'Agostino. Indeed,D'Agostino entered into the contract to fulfill its duty to maintain the sprinklers pursuant to itslease with plaintiffs, who were required by law to have the sprinkler systems inspected at leastonce a month by a person holding a certificate of fitness (see former Administrative Codeof City of NY § 27-4265). Thus, D'Agostino clearly intended to benefit plaintiffs byengaging Allstate to inspect the sprinklers (see MK W. St. Co. v Meridien Hotels, 184AD2d 312, 313 [1992] ["the intention which controls in determining whether a stranger to acontract qualifies as an intended third-party beneficiary is that of the promisee"]), and the benefitto plaintiffs was "sufficiently immediate, rather than incidental, to indicate the assumption by thecontracting parties of a duty to compensate [the noncontracting parties] if the benefit is lost"(Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 336 [1983]).
Furthermore, while "a contractual obligation, standing alone, will generally not give rise totort liability in favor of a third party" (Espinal v Melville Snow Contrs., 98 NY2d 136,138 [2002]), there are three exceptions to this general rule pursuant to which a party may be saidto have assumed a duty of care to third parties (id. at 140). One of those exceptions iswhere the third party has detrimentally relied on the continued performance of the contractingparty's duties (id.). Given Allstate's admitted failure to inspect the sprinkler system formonths before the fire, despite its contractual obligation to perform monthly inspections, andevidence of its failure to report to the owner and the fire department that it had found thesprinkler system shut off on several inspections, we agree with the motion court that issues offact exist as to whether plaintiffs and defendant subtenant Metropolitan detrimentally relied onAllstate's continued performance of its contractual duties.
However, we find that the other two Espinal exceptions do not apply. Any failure byAllstate to inspect the sprinklers did not launch a force or instrument of harm (see Church vCallanan Indus., 99 NY2d 104, 112 [2002] [incomplete performance of contractual duty toinstall guide rail did nothing more than neglect to make highway safer, as opposed to making itless safe]; see also Moch Co. v Rensselaer Water Co., 247 NY 160, 168 [1928] ["(t)hequery always is whether the putative wrongdoer has advanced to such a point as to have launcheda force or instrument of harm, or has stopped where inaction is at most a refusal to become aninstrument for good"]; compare Powellv HIS Contrs., Inc., 75 AD3d 463 [2010] [where evidence indicated contractor hadnegligently installed a new sidewalk, issue of fact as to whether it created unreasonable risk ofharm or increased that risk], withOcampo v Abetta Boiler & Welding Serv., Inc., 33 AD3d 332 [2006] [where evidencepresented that contractor negligently repaired machine that was put back into operation, issue offact existed as to whether contractor launched a force or instrument of harm]). Nor was thesprinkler inspection contract the type of comprehensive and exclusive service agreement foundby the Court of Appeals in [*3]Palka v Servicemaster Mgt.Servs. Corp. (83 NY2d 579, 588 [1994]) that would create a duty of care to noncontractingthird parties (see Fairclough v All Serv.Equip. Corp., 50 AD3d 576, 578 [2008]; Gamarra v Top Banana, LLC, 50 AD3d 425 [2008]).
Regarding the matter of Allstate's alleged negligence, issues of fact include whether Allstatewas able to gain access to the premises to inspect the sprinkler system; whether it breached itsduty to inspect the system and whether any breach of Allstate's regulatory and contractual duties(including any failure to report to the owners, D'Agostino, and/or the fire department that thesprinkler valve was found to be shut off on several inspections) was a proximate cause of thedamage.
Given that triable issues of fact exist as to Allstate's negligence, it is not entitled to summaryjudgment on its cross claim for contractual indemnification from D'Agostino (see Vukovich v 1345 Fee, LLC, 61AD3d 533, 534 [2009]). Concur—Mazzarelli, J.P., Friedman, Richter andAbdus-Salaam, JJ.