Wilson v. Hyatt Corp.

• Decision Date: 20 April 2010
• Citation: 72 A.D.3d 939,900 N.Y.S.2d 325
• Parties: Gerri WILSON, respondent, v. HYATT CORPORATION, et al., defendants, Harvard Maintenance, Inc., et al., appellants.
• Court: New York Supreme Court — Appellate Division

900 N.Y.S.2d 325

72 A.D.3d 939

Gerri WILSON, respondent,

v. HYATT CORPORATION, et al., defendants,Harvard Maintenance, Inc., et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

April 20, 2010.

Ryan, Brennan & Donnelly, LLP, Floral Park, N.Y. (John O. Brennan of counsel), for appellant Harvard Maintenance, Inc.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Richard E. Lerner and Judy C. Selmeci of counsel), for appellant Platinum Maintenance Services, Corp.

Ronemus & Vilensky, LLP, New York, N.Y. (Michael B. Ronemus, Susan J. Kerker, and Erica Podolsky of counsel), for respondent.

FRED T. SANTUCCI, J.P., DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ.

In an action to recover damages for personal injuries, the defendants Harvard Maintenance, Inc., and Platinum Maintenance Services Corporation separately appeal from an order of the Supreme Court, Queens County (Kitzes, J.), dated March 20, 2009, which denied their separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is reversed, on the law, with one bill of costs, and the separate motions of the defendants Harvard Maintenance, Inc., and Platinum Maintenance Services, Corp., for summary judgment dismissing the complaint insofar as asserted against each of them are granted.

The plaintiff alleged that she slipped and fell on a wet door mat at the 42nd Street"arcade" entrance to the Grand Hyatt Hotel. The evidence showed that it snowed heavily on the day prior to this occurrence. The plaintiff commenced this action against Hyatt Corporation and Grand Hyatt Hotel, the hotel owners, and against two contractors who performed certain services at the hotel, Harvard Maintenance, Inc. (hereinafter Harvard), and Platinum Maintenance Services Corp. (hereinafter Platinum). Harvard and Platinum separately moved for summary judgment dismissing the complaint insofar as asserted against each of them, and the Supreme Court denied both motions. We reverse.

A contractor's limited contractual undertaking to provide cleaning services generally does not give rise to a duty of care in tort to persons not a party to the contract, absent evidence that the contractor assumed a comprehensive and exclusive maintenance obligation, that the contractor launched a force or instrumentality of harm, or that the plaintiff detrimentally relied on the contractor's continued performance of its obligation ( see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485; George v. Marshalls of MA, Inc., 61 A.D.3d 925, 928-929, 878 N.Y.S.2d 143; DeMartino v. Home Depot U.S.A., Inc., 37 A.D.3d 758, 759, 831 N.Y.S.2d 236). Here, the plaintiff does not contend that she relied to her detriment upon Harvard's continued performance of its duties. In support of its motion for summary judgment, Harvard established, prima facie, that it did not assume a comprehensive and exclusive maintenance obligation at the premises, as it was responsible for providing only limited cleaning services, and the staff of the hotel generally was responsible for cleaning the area where the accident occurred ( see George v. Marshalls of MA, Inc., 61 A.D.3d 925, 928-929, 878 N.Y.S.2d 143; DeMartino v. Home Depot U.S.A., Inc., 37 A.D.3d at 759, 831 N.Y.S.2d 236; Roveccio v. Ry Mgt. Co., Inc., 29 A.D.3d 562, 816 N.Y.S.2d 114; Perkins v. Cosmopolitan Care Corp., 308 A.D.2d 437, 439, 764 N.Y.S.2d 276). In opposition, the plaintiff failed to raise a triable issue of fact.

Harvard also established, prima facie, that it did not launch a force or instrumentality of harm at the premises ( see Espinal v. Melville Snow Contrs., 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485). The evidence showed that only one Harvard employee worked at the hotel during daylight hours, and this employee had last worked in the areaof the accident two to three hours prior to the incident, which occurred shortly after 9:00 A.M. In opposition, although the plaintiff submitted her deposition testimony that, prior to the accident, she had seen a worker cleaning a door or door handle at the arcade entrance, it is undisputed that this worker did not fit the description of Harvard's sole daytime employee at the hotel, and there was no other evidence connecting Harvard to the creation of the purported dangerous condition in the door mat. Under these circumstances, the plaintiff failed to raise a triable issue of fact as to whether Harvard assumed a duty of care toward her by virtue of its having launched a force or instrumentality of harm at the premises ( see Georgotas v. Laro Maintenance Corp., 55 A.D.3d 666, 667, 865 N.Y.S.2d 651; Wheaton v. East End Commons Assoc., LLC, 50 A.D.3d 675, 677-678, 854 N.Y.S.2d 528; DeMartino v. Home Depot U.S.A., Inc., 37 A.D.3d at 759, 831 N.Y.S.2d 236). Accordingly, the Supreme Court should have granted Harvard's motion for summary judgment dismissing the complaint insofar as asserted against it.

The evidence also established that Platinum owed no duty of care toward the plaintiff. The plaintiff does not contendthat she relied to her detriment upon Platinum's performance of its duties. The evidence established, prima facie, that Platinum did not assume a comprehensive and exclusive maintenance...