Opinion
May 21, 1996
Appeal from the Supreme Court, New York County (Walter Tolub, J.).
In this slip and fall personal injury action, the IAS Court properly granted summary judgment dismissing the complaint against defendant, who had contracted with plaintiff's employer to provide interior design services.
"To limit an open-ended range of tort duty arising out of contractual breaches, injured noncontracting parties must show that the `performance of contractual obligation [between others] has induced detrimental reliance [by them] on continued performance and inaction would result not "merely in withholding a benefit, but positively or actively in working an injury"' ( Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d 220, 226, supra, citing Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 167, supra). The nexus for a tort relationship between the defendant's contractual obligation and the injured noncontracting plaintiff's reliance and injury must be direct and demonstrable, not incidental or merely collateral [citations omitted]." ( Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 587.)
Here, there was no showing whatever of plaintiff's detrimental reliance on defendant's continued performance. Defendant's performance was completed prior to plaintiff's presence as an employee at the restaurant where the alleged accident occurred. Thus, the facts are distinguishable from those in Palka v Servicemaster Mgt. Servs. Corp. (supra), where the defendant contracted to supervise a preventative maintenance program which particularly included the inspection and repair of the wall-mounted fans, one of which fell and injured the plaintiff ( supra, at 584). Nor was there evidence that defendant's actions had "`launched a force or instrument of harm'" ( Bourk v National Cleaning, 174 A.D.2d 827, 828, lv denied 78 N.Y.2d 858).
We have considered plaintiff's other contentions and find them to be without merit.
Concur — Rosenberger, J.P., Ellerin, Rubin and Nardelli, JJ.