Einhorn v. Seeley

• Citation: 525 N.Y.S.2d 212,136 A.D.2d 122
• Parties: Lori EINHORN and Kenneth Einhorn, Plaintiffs-Respondents, v. David SEELEY, Defendant-Respondent, REM Discount Security Products, Inc., Defendant-Appellant, 15 East 21st Street Co., Defendant-Respondent.
• Decision Date: 08 March 1988
• Court: New York Supreme Court Appellate Division

Page 212

525 N.Y.S.2d 212

136 A.D.2d 122

Lori EINHORN and Kenneth Einhorn, Plaintiffs-Respondents, v. David SEELEY, Defendant-Respondent, REM Discount Security Products, Inc., Defendant-Appellant, 15 East 21st Street Co., Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

March 8, 1988.

Kenneth Kirschenbaum, of counsel (Ira Levine with him on the brief; Kirschenbaum & Kirschenbaum, P.C., Garden City, attorneys), for defendant-appellant.

Michael C. Lesser, of counsel (Louis Engelmayer, New York City, attorney), for plaintiffs-respondents.

Before MURPHY, P.J., and SANDLER, CARRO, ASCH and KASSAL, JJ.

ASCH, Justice.

On June 7, 1981, the plaintiff, Lori Einhorn, was allegedly assaulted and raped in the building at premises located at 15 East 21st Street. She was accosted on the second floor landing and dragged by her assailant, concededly not a tenant, up the stairway, to the third floor, where the attack occurred inside of the apartment she was visiting. This action for personal injuries was commenced against the owner, David Seeley and 15 East 21st Street Co., and against appellant, Rem Discount Security Products, Inc. ("Rem"). Plaintiffs claim that Rem had improperly installed or repaired the lock on the front door of the building, through which the assailant may have entered the premises. They contend that the front door lock of the building was broken to such an extent that the door could be opened "with a firm push, even when locked", that this condition had been in existence for some time and brought to the attention of the landlord. At the time of this horrendous event, Lori was not a tenant. She and Kenneth Einhorn, the tenant, were engaged. They were not married until April 10, 1983, almost two years after the assault.

The Supreme Court denied defendant Rem's motion for summary judgment and its subsequent motion to renew. We reverse since we find no support for a different result under the established principles of contract or tort law. We do not believe that an extension of liability under the facts herein alleged, to comprehend a locksmith, for injury to a person not in privity with the locksmith, actually perpetrated by a stranger to both plaintiffs and defendants, allegedly arising out of a negligent repair or installation of a front door lock, is warranted.

Defendant Rem, in support of its motion for summary judgment, asserted, by its President, that it had no contract with plaintiffs with respect to the locksmith services it furnished the co-defendant landlord. Significantly, in their opposition, plaintiffs never specifically asserted the existence of a contractual duty, express or otherwise, on the part of defendant Rem toward them. Rather, in a conclusory fashion, they alleged that Rem's duty to plaintiff Lori Einhorn was "clearly established" and that "by undertaking to install and/or repair locks on the front door, defendants themselves created a duty to the tenants to properly install and/or repair security devices on the front door of the premises." It is clear, therefore, that an action based upon an express contract between plaintiffs and defendant locksmith, Rem, does not lie.

The action is, of course, not maintainable in contract on a third party beneficiary theory since plaintiffs were, at most, incidental rather than intended beneficiaries of any agreement between the landlord and Rem ( Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896).

The first obstacle which arises is the fact that there has been no direct transaction between the plaintiff and the defendant, which usually is expressed by saying that they are not in "privity" of contract. There is thus no logical basis upon which the one may be required to perform the contract for the other, unless the contract has been made expressly for the benefit of the plaintiff, or it has been assigned to him. (Prosser & Keeton on The Law of Torts [5th ed], West Publishing Co. [1984], sec. 93, p 667.)

Fortunately, Moch Co. v Rensselaer Water Co. (supra) furnishes a signpost which helps us. In that case, an individual member of the public brought an action against a water works company for damages suffered as a result of defendant's negligent failure to furnish an adequate supply of water so as to extinguish a fire. Justice (then Chief Judge) Cardozo wrote an analysis, in 1928, which is still valid today and which furnishes the rationale for this opinion:

The plaintiff would have us hold that the defendant, when once it entered upon the performance of its contract with the city, was brought into such a relation with every one who might potentially be benefited through the supply of water at the hydrants as to give to negligent performance, without reasonable notice of a refusal to continue, the quality of a tort. ... We are satisfied that liability would be unduly and indeed indefinitely extended by this enlargement of the zone of duty. The dealer in coal who is to supply fuel for a shop must then answer to the customers if fuel is lacking. The manufacturer of goods, who enters upon the performance of his contract, must answer, in that view, not only to the buyer, but to those who to his knowledge are looking to the buyer for their own sources of supply. Every one making a promise having the quality of a contract will be under a duty to the promisee by virtue of the promise, but under another duty, apart from contract, to an indefinite number of potential beneficiaries when performance has begun. The assumption of one relation will mean the involuntary assumption of a series of new relations, inescapably hooked together. Again we may say in the words of the Supreme Court of the United States, "The law does not spread its protection so far" [citations omitted].

( Moch Co. v Rensselaer Water Co., supra, at 168, 159 N.E. 896.)

Accordingly, plaintiffs, in opposing Rem's summary judgment motion, have completely failed to come forward with any viable theory for recovery on the basis of contractual obligation.

Plaintiffs are, therefore, relegated to the cause of action in tort pleaded in their first cause of action. "A defendant may be held liable for negligence only when it breaches a duty owed to the plaintiff ( Pulka v. Edelman, 40 N.Y.2d 781, 782 [390 N.Y.S.2d 393, 358 N.E.2d 1019] )." ( Strauss v. Belle Realty Co., 65 N.Y.2d 399, at 402, 492 N.Y.S.2d 555, 482 N.E.2d 34.) The essential question here is whether the defendant locksmith owed a duty, apart from contract, to plaintiffs. In deciding whether or not there is such liability, as Justice Kaye pointed out in the Strauss case:

But while the absence of privity does not foreclose recognition of a duty, it is still the responsibility of courts, in fixing the orbit of duty, "to limit the legal consequences of wrongs to a controllable degree" ( Tobin v Grossman, 24 NY2d 609, 619 [301 N.Y.S.2d 554, 249 N.E.2d 419]; see also, Howard v Lecher, 42 NY2d 109 [397 N.Y.S.2d 363, 366 N.E.2d 64] ), and to protect against crushing exposure to liability ( see, Pulka v Edelman, 40 NY2d 781 [390 N.Y.S.2d 393, 358 N.E.2d 1019], supra; Ultramares Corp. v. Touche, 255 NY 170 ). "In fixing the bounds of that duty, not only logic and science, but policy play an important role" ( De Angelis v Lutheran Med. Center, 58 NY2d 1053, 1055 [462 N.Y.S.2d 626, 449 N.E.2d 406]; see also, Becker v Schwartz, 46 NY2d 401, 408 [413 N.Y.S.2d 895, 386 N.E.2d 807] ). The courts' definition of an orbit of duty based on public policy may at times result in the exclusion of some who might otherwise have recovered for losses or injuries if traditional tort principles had been applied. (At pp 402-3 [492 N.Y.S.2d 555, 482 N.E.2d 34].)

There is no basis in tort for liability in this case. This is not a case in which the defendant locksmith itself injured the plaintiff either by a direct volitional act or even by some negligent act, i.e., leaving a bag of tools in a doorway. Here, the act complained of by plaintiff was perpetrated by an intervening person. There will ordinarily be no duty thrust on a defendant to prevent a third party from causing harm to another. The exception may occur in the case where a special relationship exists between the defendant and the third person so as to give rise to a duty to control, or alternatively, when a special relationship exists between the defendant and the victim which gives the latter the right to protection (Restatement [Second] of Torts sec. 315). Thus, such special relationships have been held to include employers-employees, owners and occupiers of premises, common carriers and their patrons, and hosts who serve alcoholic beverages to their guests, among others (see, Private Person's Duty and Liability for Failure to Protect Another Against Criminal Attack by Third Person, 10 A.L.R.3d 619; Dooley, Modern Tort Law, sec. 3.12, vol 1, p 34). Although plaintiffs plead such duty on the part of defendant Rem, it is clear that they do not fit into any category which has been held to constitute such a special relationship.

It may be that the landlord is liable to the victim, Lori Einhorn. While there have been a few cases in which the landlord has been held liable to a tenant who has been a victim of crime as a result of a defective lock, none of those cases extends the zone of duty to include a third party who was hired by the landlord to install or repair the lock and who does so improperly. The expansion of the net of obligation to enmesh a landlord in such situation has been a slow process based on discriminating selection and wanton conduct on the part of the landlord. As pointed out by Presiding Justice Murphy, writing for this court in Gill v. New York City Housing Authority, 130 A.D.2d 256, at 262-263, 519 N.Y.S.2d 364:

A landlord is, of course, under a duty to take reasonable security measures to protect his tenants from the intentional criminal acts of others if he knows or should know that common areas upon his premises have been the...