Paradiso v. Apex Investigators & Sec. Co., Inc.

• Decision Date: 18 January 1983
• Court: New York Supreme Court — Appellate Division
• Parties: Joseph M. PARADISO, Plaintiff-Respondent, v. APEX INVESTIGATORS & SECURITY CO., INC., Defendant-Appellant.

Page 234

458 N.Y.S.2d 234

91 A.D.2d 929

Joseph M. PARADISO, Plaintiff-Respondent, v. APEX INVESTIGATORS & SECURITY CO., INC., Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Jan. 18, 1983.

S.B. Rubin, New York City, for plaintiff-respondent.

M. Wolpinsky, Brooklyn, for defendant-appellant.

Before SANDLER, J.P., and SULLIVAN, ROSS, CARRO and KASSAL, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County, entered on January 30, 1981, which denied defendant-appellant Apex's motion to dismiss the complaint for failure to state a cause of action or, in the alternative, for summary judgment, reversed, on the law, and the motion for summary judgment granted, without costs.

Plaintiff and another employee were shot during a Pathmark supermarket robbery occurring several minutes after closing time. Defendant Apex furnished security guards and services for the market. The uniformed guard had received permission from the manager to go to the bathroom just before the robbery occurred and did not reappear until after it was concluded. Plaintiff alleges inter alia that he had failed to lock the door properly before he left and that his presence might have deterred the robbers. The plaintiff testified that an armed masked man burst through the door of the "counting room", where plaintiff was going over the day's receipts and demanded the key. When plaintiff said, "I don't know what key", the nervous robber said "Don't fool around, I want the key", put the gun to plaintiff's arm and "it just went off".

The agreement between the parties, as evidenced by the letter agreement nominally covering three other stores, the job descriptions and rules and regulations of defendant and the pre-trial testimony of Apex's president, do not reveal any provision specifically creating an obligation to plaintiff. Plaintiff failed to submit any evidence to the contrary. His claim that Apex's services were furnished under "some subsequent agreement, written or oral", is speculative and insufficient to defeat summary judgment. Despite his claims, plaintiff was not a third-party beneficiary of Pathmark's contract with Apex and was owed no contractual duty of protection against harm. Nor do we find on this record any factual question concerning the assumption of a duty on the part of Apex's unarmed guards to prevent armed robberies.

The record reveals no actionable negligence on the part of Apex which precipitated the injury to plaintiff. This wanton injury was not proximately related to the acts or omissions of defendant or a foreseeable consequence thereof.

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, is applicable. There the court stated, at 760-61, 382 N.Y.S.2d 769, "before 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 from physical injury.... It cannot be said as a matter of law that it was the intention of the parties under this contract to provide for the protection of plaintiff.... Further, it cannot be said that the absence of the guard (who, incidentally was not required to be armed) from his station was the proximate cause of the shooting.... Nor was the incident foreseeable even were we to assume that there was an issue of affirmative negligence in this case ...".

All concur except KASSAL, J., who dissents in a memorandum as follows:

I dissent and would affirm the order denying defendant's motion for summary judgment dismissing the complaint.

I fail to perceive the underlying rationale of the majority, which concluded as a matter of law, that there was no contractual duty owed to plaintiff, a manager of this supermarket, either as a third-party beneficiary or otherwise, where the contract concerning this Queens supermarket, the site of the robbery and the shooting, was not submitted on the motion and is not contained in the record on this appeal. The letter agreement between Apex Investigators and Supermarkets General, by its express terms, covered only the specific locations set forth in the exhibit annexed thereto, which listed three other supermarket locations, all in the Bronx. The agreement does not include the Pathmark supermarket in Whitestone, Queens, where plaintiff had been employed. Although that agreement, according to appellant's president, authorized the furnishing of security at the Whitestone store, the terms of the agreement presented do not support the claim.

Moreover, appellant's reliance upon the agreement as prima facie proof that it owed no duty under the facts of this case, a position acceded to by the majority, is in clear conflict with the pleadings served herein. Appellant's answer denies the allegation in paragraph "THIRD" of the complaint that defendant had entered into a contractual agreement with Pathmark to furnish security guards and service at the Pathmark supermarket at 31 Farington Street, Whitestone, Queens. The denial in the answer constitutes a judicial admission, raising a factual question which may be properly considered on the motion for summary relief. In any event, there is a clear factual issue here whether the letter agreement contained within the record actually applied with respect to the Queens location.

The deficiency in the proof offered by appellant is in no way remedied by the deposition transcript of the president of Apex. Mr. Rodriguez testified, with respect to appellant's rules applicable to uniformed guards, that the job description and regulations were applicable to the Whitestone store at the time of the occurrence. He did not, however, similarly testify with respect to the letter agreement. Thus, without proof of an underlying agreement, there could be no disposition as to plaintiff's status as a third-party beneficiary as a matter of law.

I find the record replete with factual issues sufficient to preclude summary disposition. Appellant relies upon the job description as providing, inter alia, that security guards were not obligated to stop shoplifters. Here, however, we are not concerned with a shoplifter, but with an armed robbery. Conceivably, a company in the position of Apex might have an interest in avoiding situations whereby...