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Contractual Tort Claim Is Anything But "Spot On" (NY)

October 16, 2020

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<p style="text-align: justify;">This week we present an interesting ruling from the Second Department in New York on contractual liability to a third-party. In <a href=""><em>Qoku</em> </a><em> v 42nd St. Dev. Project, Inc.</em>, 2020 NY Slip Op 05543, the plaintiff slipped and fell on an oil spot on the floor of a loading dock and sued the defendant-janitorial company claiming negligence pursuant to its contractual obligations with a non-party. Normally, a contractual obligation does not allow a third-party to file a tortious claim pursuant to that contract. However, the courts in New York do recognize an exception to that rule. See (<em>Espinal v Melville Snow Contrs</em>., 98 NY2d 136, 138).</p>
<p style="text-align: justify;">“The Court of Appeals has recognized three exceptions to the general rule: '(1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely’.” (<em>Bronstein v Benderson Dev. Co., LLC</em>, 167 AD3d 837, 838, quoting, <em>Espinal v Melville Snow Contrs</em>., 98 NY2d at 140).</p>
<p style="text-align: justify;">Defendant-janitorial company testified they did not create the oil spot, they were not aware of the oil spot, and they were not obligated to clean the area where the oil spot was present. Plaintiff testified that she did not know where the oil spot came from, whether defendant-janitorial company was supposed to clean area, or whether she ever saw them clean the area. The Second Department concluded that the plaintiff failed to provide sufficient evidence establishing that the defendant-janitorial company had a duty of care to the plaintiff under the circumstances and dismissed her claims.</p>
<p style="text-align: justify;">This ruling gives contractual parties more protection from third-party tort claims, especially those where plaintiff has not presented evidence that a duty was even breached by one of the contractual parties.</p>
Thanks to Raymond Gonzalez for his contribution to this post.  Please contact <a href="">Heather Aquino</a> with any questions.

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