Henriquez v. Inserra Supermarkets, Inc.

Decision Date15 November 2011
PartiesMinerva HENRIQUEZ, et al., appellants, v. INSERRA SUPERMARKETS, INC., etc., et al., respondents, et al., defendant(and a third-party action).
CourtNew York Supreme Court — Appellate Division

OPINION TEXT STARTS HERE

Barr, Post & Associates, PLLC, Spring Valley, N.Y. (David M. Ascher of counsel), for appellants.

Alan R. Lewis, Newburgh, N.Y. (John G. Caufield of counsel), for respondent Inserra Supermarkets, Inc.

Bruce L. Steinowitz, White Plains, N.Y., for respondent MCM Paving and Excavating, Inc.REINALDO E. RIVERA, J.P., RANDALL T. ENG, ARIEL E. BELEN, and LEONARD B. AUSTIN, JJ.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Rockland County (Garvey, J.), dated May 19, 2010, as granted the separate motions of the defendant Inserra Supermarkets, Inc., and the defendant MCM Paving & Excavation, Inc., for summary judgment dismissing the complaint insofar as asserted against each of them.

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

On December 7, 2004, the plaintiff Minerva Henriquez allegedly was injured when she slipped and fell in the parking lot of the West Haverstraw Samsondale Plaza shopping center (hereinafter the shopping center). The property was owned by DPSW Samsondale, LLC (hereinafter the owner). The area of the parking lot where the plaintiff fell was a part of the property leased by the defendant Inserra Supermarkets, Inc. (hereinafter Inserra). The shopping center was managed by an entity known as Paragon Management Group, LLC. The plaintiffs commenced this action one day before the expiration of the applicable statute of limitations ( see CPLR 214[5] ), mistakenly naming Paragon Management Group, Inc., as one of the defendants, instead of Paragon Management Group, LLC (hereinafter Paragon). They attempted to serve Paragon by delivering the summons and complaint, with the misstated name, to the Secretary of State. The Supreme Court denied a motion by Paragon pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against it for lack of personal jurisdiction, and granted the plaintiffs' cross motion pursuant to CPLR 306–b for leave to extend their time to serve a summons and complaint upon Paragon with an amended caption correctly naming that defendant. Upon appeal, this Court reversed the order in its entirety, granted Paragon's motion to dismiss the complaint insofar as asserted against it for lack of personal jurisdiction, and denied the plaintiffs' cross motion for leave to extend their time to serve a summons and complaint upon Paragon, finding, inter alia, that “because [Paragon] was never served with process, the Supreme Court lacked personal jurisdiction over it” ( see Henriquez v. Inserra Supermarkets, Inc., 68 A.D.3d 927, 928, 890 N.Y.S.2d 648).

While the prior appeal was pending, Paragon had commenced a third-party action against MCM Contracting, Inc. (hereinafter MCM Contracting), the company responsible, pursuant to the contract in effect at the time of the accident, for providing snow removal and salting services at the shopping center. The plaintiffs had named MCM Paving & Excavation, Inc. (hereinafter MCM Paving), in the complaint, rather than MCM Contracting. MCM Paving moved for summary judgment dismissing the complaint insofar as asserted against it. MCM Paving asserted that there was no cognizable theory under which it could be held liable, as there was no showing that it had a contractual relationship with any of the parties and, even if it had, it owed no duty to the injured plaintiff, who was not a party to the contract. MCM Paving further asserted that there was no evidence that it had ever performed any work in the area where the accident was alleged to have occurred. Inserra also moved for summary judgment dismissing the complaint insofar as asserted against it on the ground that it did not have any ownership or control over the parking lot. In the order appealed from, the Supreme Court, inter alia, granted the motions. We affirm the order insofar as appealed from.

The Supreme Court properly granted Inserra's motion for summary judgment dismissing the complaint insofar as asserted against it. Inserra established, prima facie, its entitlement to judgment as a matter of law. In support of its motion for summary judgment, Inserra submitted evidence showing that the area where the accident allegedly occurred was part of the shopping center's common parking area, maintenance of which was the responsibility of the landlord and Paragon. In opposition, the plaintiffs failed to raise a triable issue of fact.

The Supreme Court also properly granted MCM Paving's motion for summary judgment dismissing the complaint insofar as asserted against it. The plaintiffs do not dispute that MCM Paving was not mentioned as a party to the snow and ice removal contract. They contend, however, that MCM Paving and MCM Contracting were one and the same entity and, therefore, MCM Paving should be considered a party to the written snow and ice removal contract between MCM Contracting and Paragon. Even if this were true, MCM Paving was entitled to summary judgment dismissing the complaint insofar as asserted against it. The Court of Appeals has held that a contractual obligation, standing alone, generally will not give rise to tort liability in favor of a third party ( see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485). However, the Court identified three exceptions to the general rule, pursuant to which “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: (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” ( id. at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [internal quotation marks and citations omitted]; see Foster v. Herbert Slepoy Corp., 76 A.D.3d 210, 213, 905 N.Y.S.2d 226; ...

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