| Lotz v Aramark Servs., Inc. |
| 2012 NY Slip Op 05958 [98 AD3d 602] |
| August 15, 2012 |
| Appellate Division, Second Department |
| Sandra Lotz, Respondent, v Aramark Services, Inc.,Appellant. |
—[*1] Annette M. Scarano (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac], ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Richmond County (Fusco, J.), dated May 17, 2011, which denied its motionfor summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff, an employee of Richmond University Medical Center (hereinafter theHospital), allegedly slipped and fell on a floor with cleaning fluid on it as she exited from theutility room of the Hospital's surgical intensive care unit. The plaintiff commenced this actionagainst the defendant, Aramark Services, Inc., which had a contract with the Hospital to providecleaning services. The plaintiff alleged that the condition on the floor that led her to fall wascreated by members of the housekeeping staff who were the defendant's special employees.
Ordinarily, the breach of a contractual obligation is not sufficient in and of itself to imposetort liability upon the promisor to noncontracting parties (see Church v Callanan Indus.,99 NY2d 104, 111 [2002]; Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d220, 226 [1990]). However, the Court of Appeals recognized in Espinal v Melville SnowContrs. (98 NY2d 136, 140 [2002]) that "exceptions to this rule apply: (1) where thecontracting party, in failing to exercise reasonable care in the performance of his or her duties,launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on thecontinued performance of the contracting party's duties, and (3) where the contracting party hasentirely displaced another party's duty to maintain the premises safely" (Knox v Sodexho Am., LLC, 93 AD3d642, 642 [2012]). Here, the plaintiff alleged facts in her complaint in support of herallegation, in effect, that the defendant's agreement with the Hospital was of such acomprehensive and exclusive nature that the defendant entirely displaced the Hospital's duty ofmaintaining the premises safely. Thus, in support of its motion for summary judgment dismissingthe complaint, the defendant was required to establish that its service agreement with theHospital was not comprehensive and exclusive so as to bring it within this exception to thegeneral rule (see Foster v HerbertSlepoy Corp., 76 AD3d 210, 214 [2010]). The defendant met this burden (see id.at 214; Roveccio v Ry Mgt. Co.,Inc., 29 AD3d 562, 562-563 [2006]; Usman v Alexander's Rego Shopping Ctr., [*2]Inc., 11 AD3d 450, 451 [2004]; Hagen v Gilman Mgt. Corp., 4 AD3d330, 331 [2004]; cf. Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579,586-589 [1994]), and in opposition thereto, the plaintiff failed to raise an issue of fact that wouldwarrant a trial on this exception to the general rule (see Alvarez v Prospect Hosp., 68NY2d 320, 324 [1986]).
The plaintiff also alleged facts in her complaint and bill of particulars in support of herallegation that the defendant, in failing to exercise reasonable care in the performance of itsduties, launched a force or instrument of harm. In support of its motion, the defendant made aprima facie showing that the subject members of the housekeeping staff, who allegedly createdthe dangerous condition that caused the plaintiff to fall, were not its special employees. Inopposition, the plaintiff raised a triable issue of fact (see Thompson v Grumman AerospaceCorp., 78 NY2d 553, 557 [1991]), as to whether these members of the housekeeping staffwere the defendant's special employees and, thus, whether the defendant may be held vicariouslyliable for their alleged negligence in creating the dangerous condition (see Reinitz v Arc Elec.Constr. Co., 104 AD2d 247, 250 [1984]; 53 NY Jur 2d, Employment Relations § 411;cf. Montalbano v Kurt WeissFlorist, 1 AD3d 414, 415 [2003]).
Accordingly, the defendant's motion for summary judgment dismissing the complaint wasproperly denied. Rivera, J.P., Balkin, Belen and Chambers, JJ., concur.