Koslosky v. Ross-Malmut

• Decision Date: 19 April 2017
• Citation: 149 A.D.3d 925,52 N.Y.S.3d 400
• Parties: Jacqueline KOSLOSKY, respondent, v. Fran G. ROSS–MALMUT, et al., defendants, Auto Excellence Auto Body, appellant.
• Court: New York Supreme Court — Appellate Division

149 A.D.3d 925

52 N.Y.S.3d 400

Jacqueline KOSLOSKY, respondent,

v. Fran G. ROSS–MALMUT, et al., defendants,Auto Excellence Auto Body, appellant.

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

April 19, 2017.

Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, NY (Anton Piotroski of counsel), for appellant.

Finz & Finz, P.C., Mineola, NY (Ameer Benno of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., L. PRISCILLA HALL, JOSEPH J. MALTESE, and VALERIE BRATHWAITE NELSON, JJ.

In an action to recover damages for personal injuries, the defendant Auto Excellence Auto Body appeals from an order of the Supreme Court, Suffolk County (Rebolini, J.), dated October 13, 2015, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Auto Excellence Auto Body for summary judgment dismissing the complaint insofar as asserted against it is granted.

The plaintiff allegedly was injured in an automobile collision and subsequently commenced this action against, among others, the defendant Auto Excellence Auto Body (hereinafter Auto Excellence). The vehicle the plaintiff was driving at the time of the collision was owned by the defendant Patsy Saccente. Approximately five months prior to the subject accident, Auto Excellence had repaired the vehicle. The complaint alleged that Auto Excellence was negligent in repairing or failing to repair the subject vehicle. Auto Excellence moved for summary judgment dismissing the complaint insofar as asserted against it. The Supreme Court denied the motion, and Auto Excellence appeals.

A contractual obligation, standing alone, generally will not give rise to tort liability in favor of a third party (see Landon v. Kroll Lab. Specialists, Inc., 22 N.Y.3d 1, 6, 977 N.Y.S.2d 676, 999 N.E.2d 1121 ; Church v. Callanan Indus., 99 N.Y.2d 104, 111, 752 N.Y.S.2d 254, 782 N.E.2d 50 ; Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485 ). However, in Espinal v. Melville Snow Contrs. , 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485, the Court of Appeals recognized that exceptions to this rule apply (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 another party's duty, in Espinal, to maintain the premises safely.

Here, Auto Excellence made a prima facie showing of its entitlement to judgment as a matter of law by offering proof that the plaintiff was not a party to the repair contract and, thus, Auto Excellence owed her no duty of care (see Bono v. Halben's Tire City, Inc., 84 A.D.3d 1137, 1139, 924 N.Y.S.2d 497 ; see also Rudloff v. Woodland Pond Condominium Assn., 109 A.D.3d 810, 811, 971 N.Y.S.2d 170 ; Knox v. Sodexho Am., LLC, 93 A.D.3d 642, 642, 939 N.Y.S.2d 557 ; Henriquez v. Inserra Supermarkets, Inc., 89 A.D.3d 899, 901, 933 N.Y.S.2d 304 ; Lubell v. Stonegate at Ardsley Home Owners Assn., Inc.,

79 A.D.3d 1102, 1104, 915 N.Y.S.2d 103 ; Foster v. Herbert Slepoy Corp., 76 A.D.3d 210, 214, 905 N.Y.S.2d 226 ). Contrary...