Wyant v. Professional Furnishing and Equipment, Inc.

• Decision Date: 13 July 2006
• Docket Number: 99541.
• Citation: 31 A.D.3d 952,819 N.Y.S.2d 792,2006 NY Slip Op 05716
• Parties: CHERYL WYANT et al., Appellant-Respondents, v. PROFESSIONAL FURNISHING AND EQUIPMENT, INC., et al., Appellants, and ATLANTIC ENERGY SERVICES, INC., Respondent.
• Court: New York Supreme Court — Appellate Division

31 A.D.3d 952

819 N.Y.S.2d 792

2006 NY Slip Op 05716

CHERYL WYANT et al., Appellant-Respondents, v. PROFESSIONAL FURNISHING AND EQUIPMENT, INC., et al., Appellants, and ATLANTIC ENERGY SERVICES, INC., Respondent.

99541.

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

July 13, 2006.

Appeal from an order of the Supreme Court (Williams, J.), entered September 14, 2005 in Saratoga County, which, inter alia, granted a motion by defendant Atlantic Energy Services, Inc. for summary judgment dismissing the complaint against it.

Mercure, J.

Plaintiff Cheryl Wyant, a special education teacher employed by the Moriah Central School District, sustained injuries when she sat in a seat that was missing a back while attending a school assembly on May 1, 2000. Wyant and her husband, derivatively, commenced this personal injury action against defendants Atlantic Energy Services, Inc., Professional Furnishings and Equipment, Inc. (hereinafter PFE) and Don Arceneaux and Jim Hayner, doing business as Cedar Valley Construction (hereinafter Cedar Valley). Defendants were, respectively, the construction manager, contractor and subcontractor involved in the removal and replacement of auditorium seating at Moriah Central High School.

Evidently, after removing the old seats and beginning installation of the new seats, PFE and Cedar Valley discovered that they could not complete the installation because the manufacturer had failed to deliver certain parts of the new seating. Cedar Valley partially installed the seats, leaving a bank of about 30 seats with open backs. Approximately one month before the date of the incident, PFE and Cedar Valley ceased work in the locked auditorium, advising Atlantic Energy, as well as the school principal and maintenance crew, that they would not return until the manufacturer delivered the remaining seat parts.

Following joinder of issue and discovery, defendants separately moved for summary judgment dismissing the complaint and all cross claims asserted against them. Supreme Court granted Atlantic Energy's motion, but denied PFE's and Cedar Valley's motions. Plaintiffs, PFE and Cedar Valley appeal.

It is well settled that "a contractual obligation, standing alone, will generally not give rise to tort liability in favor of . . . third partie[s]" (Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]). Three exceptions to this rule exist: (1) "where the promisor, while engaged affirmatively in discharging a contractual obligation, creates an unreasonable risk of harm to others, or increases that risk"; (2) "where the plaintiff has suffered injury as a result of reasonable reliance upon the defendant's continuing performance of a contractual obligation"; and (3) when the promisor has entirely displaced the other party's duty to safely maintain the premises (Church v Callanan Indus., 99 NY2d 104, 111-112 [2002]; see Espinal v Melville Snow Contrs., supra at 139-140; Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 588-589 [1994]; Moch Co. v Rensselaer Water Co., 247 NY 160, 167-168 [1928]). Significantly, a showing greater than mere negligence is needed to establish tort liability stemming from a breach of contract (see Palka v Servicemaster Mgt. Servs. Corp., supra at 586; Rahim v Sottile Sec. Co., 32 AD3d 77 [2006]). "[T]he boundaries of duty are not simply contracted or expanded by the notion of foreseeability, for if [they] were, `[e]very one making a promise having the quality of a contract will be under a duty to the promisee by virtue of the promise, but under another duty, apart from contract, to an indefinite number of potential beneficiaries when performance has begun'" (Palka v Servicemaster Mgt. Servs. Corp., supra at 586, quoting Moch Co. v Rensselaer Water Co., supra at 168).

Here, there is no claim that the second exception applies to any of the defendants. Rather, plaintiffs argue that Atlantic Energy displaced the school's duty to safely maintain the school premises and that all three defendants created an unreasonable risk of harm.

To qualify under the third exception, the contract between Atlantic Energy and the school must be "`comprehensive and exclusive'" such that Atlantic Energy "entirely absorb[ed]" the school's duty to keep the premises in a safe condition (Espinal v Melville Snow Contrs., supra at 141; see Seymour v David W. Mapes, Inc., 22 AD3d 1012, 1013 [2005]; Hopps v Pengate Handling Sys. of N.Y., 307 AD2d 665, 666-667 [2003]). The contract between Atlantic Energy and the school district states that Atlantic Energy did not have "control over or charge of [the] acts or omissions of the" contractors and subcontractors and was not responsible for their "safety precautions and programs." In a subsequent provision, the school reserved the right "to award [further] contracts in connection with the Project which are not part of the Construction Manager's responsibilities under this Agreement." This provision was later reflected in the school's contract with PFE, in which the contractor "accept[ed] full responsibility for the actions or omissions and for the satisfactory completion of the work of [the] subcontractors." Given such language, "there is no basis for concluding that [Atlantic Energy] assumed the responsibility of...