Stiver v. Good & Fair Carting & Moving, Inc., CA 06-00509.

• Decision Date: 22 September 2006
• Docket Number: CA 06-00509.
• Citation: 2006 NY Slip Op 06691,32 A.D.3d 1209,822 N.Y.S.2d 178
• Parties: GREGORY G. STIVER et al., Respondents, v. GOOD & FAIR CARTING & MOVING, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

32 A.D.3d 1209

822 N.Y.S.2d 178

2006 NY Slip Op 06691

GREGORY G. STIVER et al., Respondents, v. GOOD & FAIR CARTING & MOVING, INC., Appellant.

CA 06-00509.

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

September 22, 2006.

Appeal from an order of the Supreme Court, Erie County (John M. Curran, J.), entered December 21, 2005 in a personal injury action. The order denied defendant's motion for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.

Memorandum: In an action to recover damages for personal injuries sustained in an automobile accident, defendant appeals from an order denying its motion for summary judgment dismissing the complaint. We agree with defendant that Supreme Court erred in denying defendant's motion and thus we reverse.

On June 13, 2001, a mechanic employed by defendant performed a New York State motor vehicle inspection (Inspection) of an automobile owned by Stephen Corbett (Corbett), the defendant in a related action, and the vehicle passed the Inspection. On August 8, 2001, a vehicle driven by Gregory G. Stiver (plaintiff) struck Corbett's vehicle from behind when Corbett's vehicle abruptly stopped in the middle of a highway, causing plaintiff to sustain personal injuries. Plaintiffs alleged that transmission components in Corbett's vehicle malfunctioned, rendering the vehicle inoperable and causing the collision. Plaintiffs commenced this negligence action alleging that defendant failed to use reasonable care when performing the Inspection of Corbett's vehicle. We agree with defendant that, under the circumstances of this case, defendant owed no duty of care to plaintiffs.

In a tort action, a threshold question is whether the alleged tortfeasor owed a duty of care to the injured party (see Darby v Compagnie Natl. Air France, 96 NY2d 343, 347 [2001]), and it is settled that the existence and scope of a duty of care is a question for the courts (see generally Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 232 [2001]). Any duty of defendant to plaintiffs in this case must arise from its contractual agreement to perform the Inspection because it had no preexisting duty imposed by law to inspect Corbett's vehicle. As a general rule, recovery for negligent performance of a contractual duty is limited to an action for breach of contract, and a party to a contract is not liable in tort to noncontracting third parties (see Church v Callanan Indus., 99 NY2d 104, 111 [2002]; Espinal v Melville Snow Contrs., 98 NY2d 136 [2002]; Moch Co. v Rensselaer Water Co., 247 NY 160 [1928]). Here, there is no dispute that plaintiffs were not parties to the contractual agreement between defendant and Corbett to perform the Inspection of Corbett's vehicle. Nevertheless, plaintiffs contend that three exceptions to the general rule, in which a duty of care to a noncontracting third party may arise out of a contractual obligation or the performance thereof, apply in this case. We reject that contention.

First, although a...