Bourk v. National Cleaning
| Citation | 174 A.D.2d 827,570 N.Y.S.2d 755 |
| Parties | Edward E. BOURK, Respondent, v. NATIONAL CLEANING, Appellant. |
| Decision Date | 06 June 1991 |
| Court | New York Supreme Court — Appellate Division |
Siff, Rosen & Parker, P.C. (S. Dwight Stephen, of counsel), New York City, for appellant.
Kaiser, Murray, Collier & Murphy (Franklin Eck, of counsel), Ellenville, for respondent.
Before CASEY, J.P., and MIKOLL, YESAWICH, MERCURE and CREW, JJ.
Appeal (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Peter Patsalos, J.), entered April 10, 1990 in Orange County, which denied defendant's motion for summary judgment dismissing the complaint.
On January 9, 1988, plaintiff was leaving his place of work in a building owned by his employer when he slipped and fell, suffering the injuries forming the basis for this action. The claim of liability is predicated upon the fact that defendant had contracted with the employer to perform services which included snow removal, that it had snowed on the day in question and that defendant had failed to remove an accumulation of snow and ice from the area where plaintiff fell. Following discovery, defendant moved for summary judgment dismissing the complaint upon the ground that it breached no duty of care to plaintiff as a matter of law. Supreme Court denied the motion and defendant appeals.
We reverse. In our view, defendant did not assume a duty to exercise reasonable care to prevent foreseeable harm to plaintiff (see, Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d 220, 226, 557 N.Y.S.2d 286, 556 N.E.2d 1093). Although there is no question that defendant's contract imposed a duty in favor of the employer, there is no basis for a finding that plaintiff was an intended third-party beneficiary of that contract (see, id.; Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 164, 159 N.E. 896) and "mere inaction, without more, establishes only a cause of action for breach of contract" (Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., supra, 76 N.Y.2d at 226, 557 N.Y.S.2d 286, 556 N.E.2d 1093; see, Moch Co. v. Rensselaer Water Co., supra, 247 N.Y. at 167, 159 N.E. 896; Andreaccio v. Unique Parking Corp., 158 A.D.2d 222, 227-228, 558 N.Y.S.2d 930). Where performance of contractual obligations has induced detrimental reliance on continued performance, mere inaction may give rise to tort liability (Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., supra ). Here,...
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