WILLIAM F. MASTRO
Arshack, Hajek, Lehrman, PLLC, New York, N.Y. (Roselvin Sanchez and Lynn C. Hajek of counsel), for appellant Wyckoff Heights Hospital. LeClairRyan, New York, N.Y. (Timothy E. Shanley of counsel), for appellant Sodexo, Inc., doing business as Sodexho Health Care Services.
Sacco & Fillas, LLP, Astoria, N.Y. (Brad S. Levin of counsel), for respondents.
WILLIAM F. MASTRO, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.
In an action to recover damages for personal injuries, the defendants separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated July 19, 2013, as denied their respective motions for summary judgment dismissing the complaint insofar as asserted against each of them.
ORDERED that the order is reversed, on the law, with one bill of costs, and the defendants' respective motions for summary judgment dismissing the complaint insofar as asserted against each of them are granted.
The plaintiff Helene Sperling (hereinafter the injured plaintiff) allegedly was injured when she slipped and fell on a slick substance on the floor of the premises of the defendant Wyckoff Heights Hospital (hereinafter the Hospital). Pursuant to a management agreement between the Hospital and the defendant Sodexo, Inc., doing business as Sodexho Health Care Services (hereinafter Sodexo), Sodexo was to manage and supervise the Hospital's employees who were responsible for performing, inter alia, housekeeping services. The Supreme Court denied the defendants' respective motions for summary judgment dismissing the complaint insofar as asserted against each of them. We reverse.
“Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party” ( Glover v. John Tyler Enters., Inc., 123 A.D.3d 882, 882, 999 N.Y.S.2d 150; see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138–139, 746 N.Y.S.2d 120, 773 N.E.2d 485). However, there are three exceptions to this general rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm or creates or exacerbates a hazardous condition; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties; and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely ( see Espinal v. Melville Snow Contrs., 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485; Torres v. 63 Perry Realty, LLC, 123 A.D.3d 911, 913, 1 N.Y.S.3d 142; Glover v. John Tyler Enters., Inc., 123 A.D.3d at 882, 999 N.Y.S.2d 150). “As part of its prima facie showing, a contracting defendant is only required to negate the applicability of those Espinal exceptions that were expressly pleaded by the plaintiff or expressly set forth in the plaintiff's bill of particulars” ( Glover v. John Tyler Enters., Inc., 123 A.D.3d at 882, 999 N.Y.S.2d 150; see Foster v. Herbert Slepoy Corp., 76 A.D.3d 210, 214, 905 N.Y.S.2d 226).
Here, the plaintiffs alleged that Sodexo maintained and controlled the premises. Sodexo established its prima facie entitlement to judgment as a matter of law by submitting evidence establishing that the plaintiffs were not parties to the management agreement and thus, it owed the injured plaintiff no duty of care ( see Glover v. John Tyler Enters., Inc., 123 A.D.3d at 882, 999 N.Y.S.2d 150); that the management agreement was not so comprehensive and exclusive as to displace the Hospital's duty to maintain the premises safely ( see Lotz v. Aramark Servs., Inc., 98 A.D.3d 602, 603, 949 N.Y.S.2d 739; Roveccio v. Ry Mgt. Co., Inc., 29 A.D.3d 562, 562–563, 816 N.Y.S.2d 114); and that it did not create the allegedly hazardous condition ( see Lotz v. Aramark Servs., Inc., 98 A.D.3d at 603, 949 N.Y.S.2d 739). In opposition, the plaintiffs failed to raise a triable issue of fact. Therefore, the Supreme Court should have granted Sodexo's motion for summary judgment dismissing the complaint insofar as asserted against it.
With respect to the Hospital, “[a] defendant who moves for summary judgment in a slip-and-fall or trip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it” ( Campbell v. New York City Tr. Auth., 109 A.D.3d 455, 456, 970 N.Y.S.2d 284; see Amendola v. City of New York, 89 A.D.3d 775, 932 N.Y.S.2d 172). “[T]o meet its burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall” ( Campbell v. New York City Tr. Auth., 109 A.D.3d at 456, 970 N.Y.S.2d 284).
Here, the Hospital established, by submitting the transcripts of the deposition testimony of its employees, that the area in question was inspected shortly before the injured plaintiff's accident and that no slippery or wet substance was observed ( see McGee v. New York City Hous. Auth., 122 A.D.3d 695, 995 N.Y.S.2d 724; Connolly v. United Health Servs. Inc., 77 A.D.3d 1274, 910 N.Y.S.2d 218). In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the Hospital's motion for summary judgment dismissing the complaint insofar as asserted against it.