Barone v. Nickerson

• Decision Date: 29 June 2016
• Citation: 32 N.Y.S.3d 663,2016 N.Y. Slip Op. 05107,140 A.D.3d 1100
• Parties: Pasquale BARONE, appellant, et al., plaintiff, v. Jay NICKERSON, et al., defendants, Boyfriend for Hire, et al., respondents.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 1100

32 N.Y.S.3d 663

2016 N.Y. Slip Op. 05107

Pasquale BARONE, appellant, et al., plaintiff,

v. Jay NICKERSON, et al., defendants,Boyfriend for Hire, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

June 29, 2016.

Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant.

Armienti, DeBellis, Guglielmo & Rhoden, LLP, New York, N.Y. (Harriet Wong and Vanessa Corchia of counsel), for respondents.

WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and SHERI S. ROMAN, JJ.

In an action to recover damages for personal injuries, etc., the plaintiff Pasquale Barone appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated June 4, 2014, as granted that branch of the motion of the defendants Boyfriend For Hire and Eli Ben–Shoshan which was for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On February 6, 2010, Pasquale Barone (hereinafter the plaintiff) allegedly was injured when he tripped and fell while ascending an exterior stairway leading to a front porch and the entrance of a residence owned by Jay Nickerson and Katherine Fry (hereinafter together the property owners). The plaintiff alleged that he tripped on the top step of the exterior stairway and that he grabbed onto a handrail located on the porch, but the handrail “fell over.” Prior to the plaintiff's alleged accident, the property owners had hired a contractor, Boyfriend For Hire, to replace the front porch and the subject step, which was falling apart. In order to replace the porch, Boyfriend For Hire had to remove the handrail from the porch and reattach it when the project was completed, which was in or around July 2009.

The plaintiff, and his wife suing derivatively, commenced this action against, among others, Boyfriend For Hire and Eli Ben–Shoshan, the president and sole shareholder of Boyfriend For Hire (hereinafter together the defendants). In the order appealed from, the Supreme Court, inter alia, granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them.

“Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party” (Cioffi v. Klein, 119 A.D.3d 886, 888, 989 N.Y.S.2d 868

; see

Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 ). However, there are three exceptions to that general rule: “(1) where the contracting 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 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” (Espinal v. Melville Snow Contrs., 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [internal quotation marks and citation omitted]; see

Bryan v. CLK–HP 225 Rabro, LLC, 136 A.D.3d 955, 26 N.Y.S.3d 207 ). “ ‘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' ” (Sperling v. Wyckoff Hgts. Hosp., 129 A.D.3d 826, 827, 12 N.Y.S.3d 131, quoting Glover v. John Tyler Enters., Inc., 123 A.D.3d 882, 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 plaintiff alleged facts in his complaint and bills of particulars in support of his assertion that the defendants created or exacerbated the alleged dangerous conditions and, thus, launched a force or instrument of harm. Therefore, in support of their motion for summary judgment dismissing the complaint insofar as asserted against them, the defendants were required to establish, prima facie, that they did not create or exacerbate the alleged dangerous conditions (see Koelling v. Central Gen. Community Servs., Inc., 132 A.D.3d 734, 18 N.Y.S.3d 95

; Reece v. J.D. Posillico, Inc., 131 A.D.3d 596, 597, 14 N.Y.S.3d 908 ; Benavides v. 30 Brooklyn, LLC, 96 A.D.3d 889, 890, 946 N.Y.S.2d 513 ). The defendants met this burden and established their prima facie entitlement to judgment as a matter of law by...