Rahim v. Sottile Sec. Co.

• Decision Date: 15 June 2006
• Docket Number: 6831.
• Citation: 2006 NY Slip Op 04948,32 A.D.3d 77,817 N.Y.S.2d 33
• Parties: ADNAN RAHIM, Respondent, v. SOTTILE SECURITY COMPANY, Appellant.
• Court: New York Supreme Court — Appellate Division

32 A.D.3d 77

817 N.Y.S.2d 33

2006 NY Slip Op 04948

ADNAN RAHIM, Respondent, v. SOTTILE SECURITY COMPANY, Appellant.

6831.

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

June 15, 2006.

Armienti DeBellis & Whiten, LLP, New York City (Vanessa M. Corchia of counsel), for appellant.

Schwartz Grossman, LLP, New York City (Brett M. Grossman of counsel), for respondent.

OPINION OF THE COURT

FRIEDMAN, J.

At approximately 11:00 P.M. on November 2, 2001, plaintiff, the assistant manager of a Duane Reade store in Manhattan, was assaulted by a trespasser who apparently had remained in the store after closing. In this action, plaintiff seeks to recover for his resulting injuries from defendant Sottile Security Company (Sottile), an agency Duane Reade had retained to provide security services at its stores. For the reasons discussed below, we hold, following the Court of Appeals' analysis in Espinal v Melville Snow Contrs. (98 NY2d 136 [2002]), that, on this record, as a matter of law, Sottile did not owe plaintiff a duty of care in the performance of its contract with Duane Reade. We therefore reverse the order appealed from, and grant Sottile's motion for summary judgment dismissing the complaint.

Under the agreement between Duane Reade and Sottile, dated January 21, 2001, Sottile agreed "to furnish Security Officer service" at multiple sites. Paragraph 7 of the agreement provided that the security guards to be provided by Sottile "shall perform such services as agreed upon by Sottile and the Client," which services were not further detailed. Paragraph 9 provided that Sottile made "no warranty, express or otherwise, that the services furnished will avert or prevent occurrences or consequences therefrom." Finally, and of greatest significance to this case, paragraph 10 provided: "It is expressly understood and agreed that this contract is entered into solely for the mutual benefit of the parties herein and that no benefits, rights, duties, or obligations are intended or created by this contract as to third parties not a signatory [sic] hereto."

According to plaintiff's testimony, the Sottile security guard assigned to the store in question was stationed at the entrance, where he would watch people as they entered, as well as an electronic surveillance monitor. In addition, the guard would walk through the store every four hours. Just before closing time (which was 10:30 P.M. on weekdays), the guard would check to make sure that no customers remained, and then he would leave. The guard did not have keys to the store, and was not responsible for locking up at night, which was plaintiff's task. Plaintiff would remain in the store at least half an hour after closing.

Plaintiff testified that it was his understanding that the purpose of the guard's presence was to watch for shoplifters. Further, plaintiff admitted that no one had ever told him that the guard was there to protect him personally. It should also be noted that the guard performed his duties unarmed.

Plaintiff testified that, on the night of November 2, 2001, the security guard (whose name was Opoku Nti) left the store at 10:10 P.M., which was 20 minutes before closing. According to plaintiff, when Nti advised him that he was leaving early, plaintiff told him, "You can't do that, you have to stay until closing time." Nti allegedly responded, "I have to go. I have to do something important." At his deposition, plaintiff testified that he did not know whether Nti checked the store before he left that night, but plaintiff's written corrections to the transcript indicate that Nti did not check the store before leaving. Nti, for his part, testified that he stayed until 10:30 that night, and left only after checking the store.

According to plaintiff, four employees beside himself remained in the store after closing on the night of the incident. These employees left the store just before 11:00 P.M., and plaintiff, who was staying to complete some paperwork, locked the door after they left. Thereafter, plaintiff was attacked by a person he had not known was in the store. Plaintiff recognized his assailant as Oulimata Kane, a former employee he had fired (for allegedly stealing batteries) a few months before. While the attack was ongoing, plaintiff summoned the police by pressing a button on a device he wore around his neck. Although neither plaintiff nor Nti knew how or when Kane had entered the store, Kane told the police that she had entered the store at 10:20 P.M., hid in the back, and then accosted plaintiff after closing.

In determining whether plaintiff is entitled to take his negligence case against Sottile to trial, the "threshold question ... is whether [Sottile] owed a duty of care to [plaintiff]" (Espinal, 98 NY2d at 138). To answer this question, we first look to the above-quoted paragraph 10 of the agreement between Duane Reade and Sottile. Again, that provision expressly excludes any possible implication that any "benefits, rights, duties, or obligations are intended or created by this contract as to third parties not a signatory [sic] hereto." Thus, plaintiff was not an intended third-party beneficiary of Sottile's contract with his employer.

As the Court of Appeals has stated, "a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party" (id.). The foregoing principle has been applied numerous times in actions against security companies (see Anokye v 240 E. 175th St. Hous. Dev. Fund Corp., 16 AD3d 287, 288 [2005]; Dabbs v Aron Sec., Inc., 12 AD3d 396, 397 [2004]; Four Aces Jewelry Corp. v Smith, 257 AD2d 510, 511 [1999]; Gonzalez v National Corp. for Hous. Partnerships, 255 AD2d 151, 152 [1998], lv denied 93 NY2d 812 [1999]; Pagan v Hampton Houses, 187 AD2d 325, 325 [1992]; Bernal v Pinkerton's, Inc., 52 AD2d 760, 760-761 [1976], affd 41 NY2d 938 [1977]). Accordingly, since plaintiff was neither a party to Sottile's contract nor an intended third-party beneficiary thereof, we must look beyond the contract to determine whether there is evidence of any circumstances that, under applicable precedent, could support a finding that Sottile owed plaintiff a duty of care.

In Espinal, the Court of Appeals observed that its prior decisions

"identify three situations in 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 [other than intended third-party beneficiaries]: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, `launche[s] a force or instrument of harm' (Moch [Co. v Rensselaer Water Co., 247 NY 160, 168 (1928)]); (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties (see Eaves Brooks [Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, 226 (1990)]) and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely (see Palka [v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 589 (1994)])." (Espinal, 98 NY2d at 140.)

For present purposes, we assume that it could reasonably be found that Nti, the Sottile security guard, failed to carry out all his duties on the night of the incident, and that such failure was causally related to the perpetration of the assault. Even when plaintiff is given the benefit of this assumption, however, the record affords no basis for finding that any of the three situations recognized in Espinal existed here.

Turning to the first potential basis for liability referred to in Espinal, it is clear that, however negligently Nti may have performed his job, he did not "launch[ ] [the] force or instrument of harm" (Moch, 247 NY at 168) that effected the assault. That "force or instrument of harm" was Kane, a third person who, so far as the record shows, acted independently, and without Nti's knowledge. While Nti may have been negligent in failing to discover Kane before she acted, the "dangerous condition"...