Opinion
2012-11-8
Lidia VASQUEZ, Plaintiff–Respondent, v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant–Respondent, The New York City Transit Authority, Defendant, Laro Maintenance Corp., Defendant–Appellant.
McGaw, Alventosa & Zajac, Jericho (Joseph Horowitz of counsel), for appellant. Ferro, Kuba, Mangano, Sklyar, New York (Kenneth E. Mangano of counsel), for Lidia Vasquez, respondent.
McGaw, Alventosa & Zajac, Jericho (Joseph Horowitz of counsel), for appellant. Ferro, Kuba, Mangano, Sklyar, New York (Kenneth E. Mangano of counsel), for Lidia Vasquez, respondent.
Cheryl Alterman, New York, for Port Authority of New York and New Jersey, respondent.
MAZZARELLI, J.P., FRIEDMAN, CATTERSON, RENWICK, FREEDMAN, JJ.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered November 9, 2011, which, to the extent appealed from as limited by the briefs, denied defendant Laro Maintenance Corporation's motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and Laro's motion granted. The Clerk is directed to enter judgment accordingly.
In this trip-and-fall case, defendant Laro Maintenance contracted with the Port Authority to undertake responsibility for cleaning and inspecting stairs in the Port Authority Bus Terminal for defects. Plaintiff has alleged that Laro failed to fulfill its duty of care to her by not identifying the defective stair nosing she fell on.
The motion court erred in not dismissing plaintiff's action against Laro Maintenance. The evidence fails to show that an issue of fact exists regarding the enumerated exceptions of Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002].
First, plaintiff concedes that Laro Maintenance did not completely displace the Port Authority, which retained its own inspectionrights and the obligation to make repairs. Second, plaintiff could not have detrimentally relied on Laro's performance of the contract, as she was unaware of the contract ( Vushaj v. Insignia Residential Group, Inc., 50 A.D.3d 393, 855 N.Y.S.2d 117 [1st Dept.2008] ). Finally, Laro, by its mere failure to inspect, did not launch a force or instrument of harm ( see Church v. Callanan Indus., 99 N.Y.2d 104, 111–112, 752 N.Y.S.2d 254, 782 N.E.2d 50 [2002];All Am. Moving & Storage, Inc. v. Andrews, 96 A.D.3d 674, 949 N.Y.S.2d 17 [1st Dept.2012] ).