Pagan v. Hampton Houses, Inc.
| Decision Date | 17 November 1992 |
| Citation | 589 N.Y.S.2d 471,187 A.D.2d 325 |
| Parties | Joaquin PAGAN, as Administrator of the Goods, Chattels and Credits which were of the Estate of Georgina Bone, a/k/a Inginia Rivera and Inginia Pagan, deceased, Plaintiff-Respondent, v. HAMPTON HOUSES, INC. and KBI Security Services, Inc., Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Before ROSENBERGER, J.P., and ELLERIN, KUPFERMAN and KASSAL, JJ.
Order, Supreme Court, New York County (Irma Vidal Santaella, J.), entered on or about January 31, 1992, which denied defendants' respective motion and cross motion for summary judgment dismissing the complaint and cross claim, unanimously reversed, on the law, the motion and cross motion granted and the complaint dismissed as to both defendants, without costs. The Clerk is directed to enter judgment in favor of the defendants-appellants, dismissing the complaint.
On January 28, 1988, 74 year old Georgina Bone, a resident of apartment 1C at 273 West 131st Street, was found murdered in her apartment. Defendant Hampton Houses owned and managed the building. Prior to the crime, Hampton Houses had contracted with defendant KBI to provide security services for the building.
As in Bernal v. Pinkerton's, Inc., 52 A.D.2d 760, 382 N.Y.S.2d 769, aff'd 41 N.Y.2d 938, 394 N.Y.S.2d 638, 363 N.E.2d 362, KBI's standard agreement to provide security services for the landlord makes no mention of the tenants and explicitly states that KBI agrees to perform such duties as specified by the landlord "that will assist [Hampton Houses] in the protection of its property, assets and personnel." (emphasis added).
It is settled that "[b]efore an injured party may recover as a third-party beneficiary for failure to perform a duty imposed by contract, it must clearly appear from the provisions of the contract that the parties thereto intended to confer a direct benefit on the alleged third-party beneficiary to protect him [or her] from physical injury." (Bernal v. Pinkerton's, Inc., supra, 52 A.D.2d at 760, 382 N.Y.S.2d 769 [citations omitted]. Absent any such showing, KBI is entitled to summary judgment dismissing the complaint and cross claim.
Similarly, given the fact that there were no signs of forced entry into the decedent's apartment, plaintiff simply cannot prove that it is more likely than not that decedent's injuries and death were caused by an unauthorized intruder. It is just as likely that the crime was...
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