Summary
In Northbrook Prop. Cas. Ins. Co. v D.J.L. Warehouse Corp. (146 A.D.2d 574, supra), the defendant Holmes Protection, Inc., contracted with the defendant D.J.L. Warehouse Corp. to install and maintain a burglar alarm system.
Summary of this case from World Trade v. Lido KnittingOpinion
January 9, 1989
Appeal from the Supreme Court, Queens County (Cooperman, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendants Holmes Protection, Inc. (hereinafter Holmes) and D.J.L. Warehouse Corp. (hereinafter DJL) entered into a contract whereby Holmes agreed to install and maintain a burglar alarm system. The plaintiff A.P. Enterprises/Zenex Electronics International (hereinafter AP) stored electronic equipment at a DJL facility which was subsequently burglarized. In opposition to Holmes's motion for summary judgment, AP's subrogor, the plaintiff Northbrook Property Casualty Insurance Company, failed to allege that AP was an intended third-party beneficiary of the burglar alarm service contract between the defendants and, therefore, the issue is not preserved for appellate review. In any event, nothing in the contract suggests that the parties intended to confer a direct benefit on the purported third-party beneficiary (see, Fourth Ocean Putnam Corp. v Interstate Wrecking Co., 66 N.Y.2d 38; Corporate Leasing v AFA Protective Sys., 101 A.D.2d 768; Bernal v Pinkerton's, Inc., 52 A.D.2d 760, affd 41 N.Y.2d 938). Furthermore, there was no duty owing from Holmes to AP. Holmes's purported dereliction was in the nature of nonfeasance, i.e., the failure to repair the alarm system rather than misfeasance, i.e., negligent performance. Hence, it incurred no liability toward AP, an unintended and incidental beneficiary of the contract (see, Corporate Leasing v AFA Protective Sys., supra).
We have examined the plaintiffs' remaining contentions and find them to be without merit. Thompson, J.P., Rubin, Spatt and Balletta, JJ., concur.