Rahim v. Sottile Sec. Co., 6831.

CourtNew York Supreme Court Appellate Division
Writing for the CourtFriedman
Citation2006 NY Slip Op 04948,32 A.D.3d 77,817 N.Y.S.2d 33
Decision Date15 June 2006
Docket Number6831.
PartiesADNAN RAHIM, Respondent, v. SOTTILE SECURITY COMPANY, Appellant.
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.

[32 A.D.3d 78]

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

32 A.D.3d 79

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 ...

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21 practice notes
  • Tuchman v. Deam Props. (Us), LLC, Index No. 101056/2010
    • United States
    • United States State Supreme Court (New York)
    • April 25, 2014
    ...v. Callanan Indus., 99 N.Y.2d 104, 111-12 (2002); Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140 (2002); Rahim v. Sottile Sec. Co., 32 A.D.3d 77, 80-81 (1st Dep't 2006); Fernandez v. Otis El. Co., 4 A.D.3d 69, 73 (1st Dep't 2004). The record supports the third set of circumstances bas......
  • Bradley v. Hwa 1290 III LLC, Index No. 157576/2012
    • United States
    • United States State Supreme Court (New York)
    • February 28, 2017
    ...to the contract as third party beneficiaries. Adelaide Prods., Inc. v. BKN Intl. AG, 38 A.D.3d at 226; Rahim v. Sottile Sec. Co., 32 A.D.3d 77, 80 (1st Dep't 2006); 767 Third Ave. LLC v. ORIX Capital Mkts., LLC, 26 A.D.3dPage 16 at 218; Greece Cent. School Dist. v. Tetra Tech Engrs., Archit......
  • Dean v. City of Buffalo, No. 02-CV-6029P.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • September 30, 2008
    ...See Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485 (2002); Rahim v. Sottile Sec. Co., 32 A.D.3d 77, 80, 817 N.Y.S.2d 33 (N.Y.App.Div.2006) (collecting cases and noting that "[t]he foregoing principle has been applied numerous times in a......
  • Aiello v. Burns Int'l Sec. Servs. Corp.
    • United States
    • New York Supreme Court Appellate Division
    • September 3, 2013
    ...contracts ( see e.g. Lebron v. Loco Noche, LLC, 82 A.D.3d 669, 670, 921 N.Y.S.2d 211 [1st Dept. 2011];Rahim v. Sottile Sec. Co., 32 A.D.3d 77, 82, 817 N.Y.S.2d 33 [1st Dept. 2006];see also Buckley v. I.B.I. Sec. Serv., 157 A.D.2d 645, 549 N.Y.S.2d 744 [2nd Dept. 1990] ). For example, in Rah......
  • Request a trial to view additional results
21 cases
  • Tuchman v. Deam Props. (Us), LLC, Index No. 101056/2010
    • United States
    • United States State Supreme Court (New York)
    • April 25, 2014
    ...v. Callanan Indus., 99 N.Y.2d 104, 111-12 (2002); Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140 (2002); Rahim v. Sottile Sec. Co., 32 A.D.3d 77, 80-81 (1st Dep't 2006); Fernandez v. Otis El. Co., 4 A.D.3d 69, 73 (1st Dep't 2004). The record supports the third set of circumstances bas......
  • Bradley v. Hwa 1290 III LLC, Index No. 157576/2012
    • United States
    • United States State Supreme Court (New York)
    • February 28, 2017
    ...to the contract as third party beneficiaries. Adelaide Prods., Inc. v. BKN Intl. AG, 38 A.D.3d at 226; Rahim v. Sottile Sec. Co., 32 A.D.3d 77, 80 (1st Dep't 2006); 767 Third Ave. LLC v. ORIX Capital Mkts., LLC, 26 A.D.3dPage 16 at 218; Greece Cent. School Dist. v. Tetra Tech Engrs., Archit......
  • Dean v. City of Buffalo, No. 02-CV-6029P.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • September 30, 2008
    ...See Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485 (2002); Rahim v. Sottile Sec. Co., 32 A.D.3d 77, 80, 817 N.Y.S.2d 33 (N.Y.App.Div.2006) (collecting cases and noting that "[t]he foregoing principle has been applied numerous times in action......
  • Aiello v. Burns Int'l Sec. Servs. Corp.
    • United States
    • New York Supreme Court Appellate Division
    • September 3, 2013
    ...contracts ( see e.g. Lebron v. Loco Noche, LLC, 82 A.D.3d 669, 670, 921 N.Y.S.2d 211 [1st Dept. 2011];Rahim v. Sottile Sec. Co., 32 A.D.3d 77, 82, 817 N.Y.S.2d 33 [1st Dept. 2006];see also Buckley v. I.B.I. Sec. Serv., 157 A.D.2d 645, 549 N.Y.S.2d 744 [2nd Dept. 1990] ). For example, in Rah......
  • Request a trial to view additional results

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