George v. Marshalls of Ma, Inc.

• Decision Date: 28 April 2009
• Docket Number: 2007-07301.
• Citation: 878 N.Y.S.2d 143,61 A.D.3d 925,2009 NY Slip Op 03478
• Parties: SHEILA GEORGE et al., Appellants-Respondents, v. MARSHALLS OF MA, INC., et al., Appellants-Respondents, and SULLIVAN SERVICE CO., INC., et al., Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

61 A.D.3d 925

878 N.Y.S.2d 143

2009 NY Slip Op 03478

SHEILA GEORGE et al., Appellants-Respondents, v. MARSHALLS OF MA, INC., et al., Appellants-Respondents, and SULLIVAN SERVICE CO., INC., et al., Respondents-Appellants.

2007-07301.

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

Decided April 28, 2009.

In an action to recover damages for personal injuries, etc., (1) the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Lally, J.), entered June 28, 2007, as granted those branches of the separate motions of the defendant Sullivan Service Co., Inc., and the defendant American Industrial Cleaning Co., Inc., which were for summary judgment dismissing the complaint insofar as asserted against them and denied their cross motion, pursuant to CPLR 3126, to strike the answer of the defendant Sullivan Service Co., Inc., inter alia, for failure to comply with discovery requests, and (2) the defendants Marshalls of MA, Inc., and TJX Companies, Inc., appeal, as limited by their brief, from so much of the same order as denied that branch of their motion which was for summary judgment on their cross claims against the defendant Sullivan Service Co., Inc., and American Industrial Cleaning Co., Inc., for common-law indemnification, and granted those branches of the separate motions of the defendants Sullivan Service Co., Inc., and American Industrial Cleaning Co., Inc., which were for summary judgment dismissing the complaint insofar as asserted against them, and (3) the

defendants Sullivan Service Co., Inc., and American Industrial Cleaning Co., Inc., separately cross-appeal, as limited by their respective briefs, from so much of the same order as granted that branch of the motion of the defendants Marshalls of MA, Inc., and TJX Companies, Inc., which was for conditional summary judgment on the cross claims asserted by the defendants Marshalls of MA, Inc., and TJX Companies, Inc., against them for contractual indemnification and, in effect, denied that branch of Sullivan Service Co., Inc.'s motion which was for summary judgment dismissing the cross claims of Marshalls of MA, Inc., and TJX Companies, Inc., insofar as asserted against it.

Ordered that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the motion of the defendant American Industrial Cleaning Co., Inc., which was for summary judgment dismissing the complaint insofar as asserted against it and substituting therefor a provision denying that branch of the motion, (2) by deleting the provision thereof granting that branch of the motion of the defendants Marshalls of MA, Inc., and TJX Companies, Inc., which was for conditional summary judgment on their cross claims for contractual indemnification and substituting therefor a provision denying that branch of the motion, (3) by deleting the provision thereof denying the plaintiffs' cross motion, pursuant to CPLR 3126, to strike the answer of the defendant Sullivan Service Co., Inc., and substituting therefor a provision denying the cross motion as academic, and (4) by adding thereto a provision searching the record, and awarding the defendant Sullivan Service Co., Inc., summary judgment dismissing the cross claim of the defendants Marshalls of MA, Inc., and TJX Companies, Inc., for commonlaw indemnification insofar as asserted against it; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

On March 26, 1999, at approximately 9:30 A.M., the plaintiff Sheila George (hereinafter George) slipped and fell at a Marshalls store in East Meadow. She entered the store just as it was opening, walking across a carpet that "felt funny . . . like when you walk on something and it squishes." When she then stepped from the carpet onto tiling, she slipped, falling onto her right knee and injuring it. While on the floor, she noticed a yellow sign indicating a wet floor a few feet away on the tiling. Subsequently, George, and her husband derivatively, commenced this action against Marshalls of MA, Inc., and TJX Companies, Inc. (hereinafter together Marshalls), as well as Sullivan Service Co., Inc. (hereinafter Sullivan), and American Industrial Cleaning Co., Inc. (hereinafter American). Sullivan had contracted with Marshalls to provide cleaning services, which were then subcontracted out to American. Marshalls asserted cross claims against Sullivan and American for common-law and contractual indemnification, and to recover damages for breach of contract for failure to procure insurance naming it as an additional insured and provide it with a defense.

Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]). However, a party who enters into a contract to render services may be said to have assumed a duty of care, and thus be potentially liable in tort to third persons where (1) the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm, (2) the plaintiff detrimentally relies on the continued performance of the contracting party's duties, or (3) the contracting party has entirely displaced the other party's duty to maintain the premises safely (id. at 140).

The plaintiffs contend that American owed them a duty of care because it launched a force or instrument of harm and/or had entirely displaced Marshalls' duty to maintain the premises safely. As to the latter, contrary to the plaintiffs' contention, American's contract, which was with Sullivan, was not a comprehensive and exclusive property maintenance obligation intended to displace Marshalls' duty, as a landowner, to safely maintain the premises, as Marshalls had its own cleaning staff (see Roveccio v Ry Mgt. Co., Inc., 29 AD3d 562, 562-563 [2006]; Hagen v Gilman Mgt. Corp., 4 AD3d 330, 331 [2004]; Eidlisz v Village of Kiryas Joel, 302 AD2d 558, 559 [2003]). As to the former, the Supreme Court incorrectly stated that the plaintiffs would have to show that some instrument directly injured George in order to be entitled to recover, for "conventional cleaning equipment, such as a mop or buffer, will not become a force or instrument of harm merely because it creates a dangerous condition upon the surface." Contrary to the Supreme Court's conclusion, it is enough that an instrument creates a dangerous condition. As the Court of Appeals stated in Espinal, the "`creation or exacerbation' test . . . is nothing more and nothing less than the formulation . . . whether the defendant's actions have `advanced to such a point as to have launched a force or instrument of harm'" (98 NY2d at 142; see Ragone v Spring Scaffolding, Inc., 46 AD3d 652, 654 [2007]; Vargas v Central Parking Sys., 35 AD3d 255, 256 [2006]). Here, the Supreme Court should have denied that branch of American's motion which was for summary judgment dismissing the complaint insofar as asserted against it. American failed to satisfy its prima facie burden of eliminating all material issues of fact (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Evidence was presented that showed that the carpeting was wet, and that there was a yellow warning sign nearby,...