Opinion
5585 Index 305567/11
02-01-2018
Keron DINKINS, Plaintiff–Appellant, v. KANSAS FRIED CHICKEN, INC. doing business as Soundview Chicken, Inc., et al., Defendants–Respondents, Ez Runner Construction Corp., et al., Defendants.
The Altman Law Firm PLLC, New York (Michael T. Altman of counsel), for appellant. McManus Ateshoglou Adams Aiello & Apostolakos PLLC, New York (Thomas S. Reilly of counsel), for Kansas Fried Chicken, Inc., respondent. Rawle & Henderson LLP, New York (Derek E. Barrett of counsel), for ROGA, respondent.
The Altman Law Firm PLLC, New York (Michael T. Altman of counsel), for appellant.
McManus Ateshoglou Adams Aiello & Apostolakos PLLC, New York (Thomas S. Reilly of counsel), for Kansas Fried Chicken, Inc., respondent.
Rawle & Henderson LLP, New York (Derek E. Barrett of counsel), for ROGA, respondent.
Renwick, J.P., Richter, Tom, Gesmer, Oing, JJ.
Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered November 17, 2016, which, to the extent appealed from, granted defendants Kansas Fried Chicken, Inc.'s and ROGA's motions for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
Defendant Kansas Fried Chicken established prima facie that it cannot be held liable for plaintiff's injuries by submitting the lease agreement for the premises showing that at the time of the accident it was an out-of-possession landlord with no duty to perform non-structural repairs (see Heim v. Trustees of Columbia Univ. in the City of N.Y., 81 A.D.3d 507, 917 N.Y.S.2d 159 [1st Dept. 2011] ). In opposition, plaintiff failed to raise a triable issue of fact, since his expert affidavit does not say that the condition of the drop ceiling that collapsed and fell on plaintiff violated a specific statutory safety provision (see Torres v. West St. Realty Co., 21 A.D.3d 718, 721, 800 N.Y.S.2d 683 [1st Dept. 2005], lv denied 7 N.Y.3d 703, 819 N.Y.S.2d 870, 853 N.E.2d 241 [2006] ).
The record demonstrates that defendant ROGA, which provided architectural consultation services pursuant to a contract with the owner of the restaurant where plaintiff was injured, owed no duty of care to plaintiff, who was not a party to the contract, and that there is no applicable exception here to the rule that a contractual duty will not give rise to tort liability in favor of a third party (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ). Plaintiff contends that ROGA launched a force of harm ( id. at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 ) by negligently designing the plans that the general contractor used to construct the drop ceiling. However, pursuant to its contract with the restaurant owner, ROGA had no obligations in connection with providing and installing the drop ceiling, for which the general contractor was responsible (see 87 Chambers, LLC v 77 Reade, LLC, 122 A.D.3d 540, 998 N.Y.S.2d 15 [1st Dept. 2014] ). Nor did plaintiff raise an issue of fact through his expert affidavit, since the record shows that ROGA had no control over the drop ceiling that would be installed (see Davies v. Ferentini, 79 A.D.3d 528, 530, 914 N.Y.S.2d 17 [1st Dept. 2010] ).