McCord v. Olympia & York Maiden Lane Company

• Decision Date: 28 June 2004
• Docket Number: 2003-07378.
• Citation: 8 A.D.3d 634,779 N.Y.S.2d 542,2004 NY Slip Op 05620
• Parties: RICHARD J. McCORD, Respondent, v. OLYMPIA & YORK MAIDEN LANE COMPANY, Respondent, and INTERNATIONAL SERVICES SYSTEMS, INC., Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

8 A.D.3d 634

779 N.Y.S.2d 542

2004 NY Slip Op 05620

RICHARD J. McCORD, Respondent, v. OLYMPIA & YORK MAIDEN LANE COMPANY, Respondent, and INTERNATIONAL SERVICES SYSTEMS, INC., Appellant, et al., Defendant.

2003-07378.

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

June 28, 2004.

In an action to recover damages for personal injuries, etc., the defendant International Services Systems, Inc., appeals from so much of an order of the Supreme Court, Kings County (Knipel,

J.), dated July 16, 2003, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it and as granted that branch of the cross motion of the defendant Olympia & York Maiden Lane Company which was for summary judgment on that defendant's cross claim against it for contractual indemnification.

Ordered that the order is modified, on the law, by (1) deleting the provision thereof denying that branch of the motion of the defendant International Services Systems, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it and substituting therefor a provision granting that branch of the motion, and (2) deleting the provision thereof granting that branch of the cross motion of the defendant Olympia & York Maiden Lane Company which was for summary judgment on its cross claim against the defendant International Services Systems, Inc., and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

Michael Gartland allegedly slipped and fell on ice on a sidewalk in front of 59 Maiden Lane in Manhattan. This action was commenced against, among others, Olympia & York Maiden Lane Company (hereinafter Olympia), the abutting landowner, and International Services Systems, Inc. (hereinafter ISS), the company hired by Olympia to provide, inter alia, snow removal services for 59 Maiden Lane. The Supreme Court, inter alia, denied ISS's motion for summary judgment dismissing the complaint and all cross claims asserted against it and granted that branch of Olympia's motion which was for summary judgment on its cross claim against ISS for contractual indemnification.

Where a cleaning services contract is not a comprehensive and exclusive property maintenance obligation intended to displace a landowner's duty to maintain the property, as is the case with the agreement herein, the contractor owes no duty of reasonable care to prevent foreseeable harm to an injured plaintiff (see Espinal v Melville Snow Contrs., 98 NY2d 136 [2002]; Gaitan v Regional Maintenance Corp., 6 AD3d 495 [2004]; Raynor-Brown v Garden City Plaza Assoc., 305 AD2d 572, 573 [2003]; Baratta v Home Depot USA, 303 AD2d 434 [2003]; Javurek v Gardiner, 287 AD2d 544 [2001]; Tuzzo v City of New York, 286 AD2d 495 [2001]; Cochrane v Warwick Assoc., 282 AD2d 567, 568 [2001]; Murphy v M.B. Real Estate Dev. Corp., 280 AD2d 457 [2001]). An exception to this rule is where the contractor's actions have "advanced to such a point as to have launched a force or instrument of harm" (Moch...