Bernal v. Pinkerton's, Inc.
| Decision Date | 04 May 1976 |
| Citation | 382 N.Y.S.2d 769,52 A.D.2d 760 |
| Parties | Frederick Paul BERNAL, Plaintiff-Respondent, and Betty Lou Bernal, Plaintiff, v. PINKERTON'S, INC., Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
S. Armstrong, New York City, for plaintiff-respondent.
J. D. Ahearn, New York City, for defendant-appellant.
Before MURPHY, J.P., and LUPIANO, BIRNS, SILVERMAN and LANE, JJ.
Judgment, Supreme Court, New York County, entered on February 5, 1975, unanimously reversed, on the law and on the facts, and vacated, without costs and without disbursements, and the complaint dismissed.
In this negligence action, the cause of respondent's injuries is not disputed, i.e., the firing of a shot by an intruder who had entered upon property of the New York Telephone Company, allegedly through a gate which was left unguarded by an employee of defendant.
The trial court erred in ruling as a matter of law, to which defense counsel excepted, that 'the duties and obligations imposed by the contractual relationship . . . between the defendant and the New York Telephone Company encompassed the personal security of Frederick Paul Bernal, who was an employee of the New York Telephone Company discharging his duties upon the New York Telephone Company's property.'
The contract provided that respondent was to
Before an injured party may recover as a third party beneficiary for failure to perform a duty imposed by contract, it must clearly appear from the provisions of the contract that the parties thereto intended to confer a direct benefit on the alleged third party beneficiary to protect him from physical injury. (Cerullo v. Aetna Casualty & Surety Co., 41 A.D.2d 1, 4, 341 N.Y.S.2d 767, 770; Blw Realty v. Socony Mobil Oil, 32 A.D.2d 312, 314, 301 N.Y.S.2d 389, 391--392, Affd. 26 N.Y.2d 1002, 311 N.Y.S.2d 36, 259 N.E.2d 500; Ramos v. Schumavon, 21 A.D.2d 4, 247 N.Y.S.2d 699, Affd. 15 N.Y.2d 610, 255 N.Y.S.2d 658, 203 N.E.2d 912; Snyder Plumbing & Heating v. Purcell, 9 A.D.2d 505, 195 N.Y.S.2d 780.)
It cannot be said as a matter of law that it was the intention of the...
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Glusband v. Fittin Cunningham Lauzon, Inc.
...Feitner & Lane, Inc. v. Brown, 4 N.Y.2d 391, 393, 151 N.E.2d 221, 222, 175 N.Y.S.2d 73, 75 (1958); Bernal v. Pinkerton's Inc., 52 A.D.2d 760, 760, 382 N.Y.S.2d 769, 770 (1st Dept.1976), aff'd, 41 N.Y.2d 938, 363 N.E.2d 362, 394 N.Y.S.2d 638 (1977). They assert further that this is clearly n......
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Fontaine v. Ryan
...only if it appears from the contract that the parties intended to protect her from physical injury. See Bernal v. Pinkerton's, Inc., 52 A.D.2d 760, 382 N.Y.S.2d 769, 770 (1st Dep't 1976), aff'd., 41 N.Y.2d 938, 394 N.Y.S.2d 638, 363 N.E.2d 362 (1977); see also Bizien v. Port Authority of Ne......
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Burns Jackson Miller Summit & Spitzer v. Lindner
...for damages resulting from nonperformance if the contract demonstrates that its primary intent was to benefit that person. (Bernal v. Pinkerton's Inc., 52 A.D.2d 760 affd. 41 N.Y.2d 938 see Port Chester Elec. Constr. v. Atlas, 40 N.Y.2d 652, 655 cf. Wright v. Herb Wright Stucco, 72 A.D.2d 9......
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Burns, Jackson, Miller, Summit & Spitzer v. Lindner
...resulting from non-performance if the contract demonstrates that its primary intent was to benefit that person. (Bernal v. Pinkerton's Inc., 52 A.D.2d 760, 382 N.Y.S.2d 769, affd. 41 N.Y.2d 938, 394 N.Y.S.2d 638, 363 N.E.2d 362; see Port Chester Electric Construction v. Atlas, 40 N.Y.2d 652......