Sprung v Amalgamated Dwellings, Inc.

[*1] Sprung v Amalgamated Dwellings, Inc. 2006 NY Slip Op 51768(U) [13 Misc 3d 1210(A)] Decided on January 4, 2006 Supreme Court, New York County Lehner, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 4, 2006
Supreme Court, New York County

Zvi Sprung, as Executor of the Estates of SARA SPRUNG and LAWRENCE SPRUNG, Deceased, Plaintiff,

against

Amalgamated Dwellings, Inc., COOPER SQUARE REALTY, INC., STEVEN SANTOS and COMMAND SECURITY CORPORATION, Defendants.



107889/04

Edward H. Lehner, J.

The complaint herein alleges that on June 12, 2002 defendant Steven Santos illegally entered the apartment of plaintiff's decedents, Sara and Lawrence Sprung, at 504 Grand Street in Manhattan (the "Building") and, after raping Mrs. Sprung, shot and killed both of them. The Building is owned by defendant Amalgamated Dwellings, Inc. ("Amalgamated"), and managed by defendant Cooper Square Realty, Inc. ("Cooper") . A third resident of the Building, Raymond D'Amelio, also was killed by Santos, and a suit has been commenced by the executrix of his estate, Joan Belinc, in Supreme Court, Queens County. The court has been advised that the Belinc action has been ordered transferred to this court for consolidation with the instant action, but at the time of oral argument the file had not been physically transferred from Queens County. Defendant Command Security Corporation "(Command"), the security company retained by Amalgamated, moves pursuant to CPLR 3211(a) 7 to dismiss the Sprung complaint and all cross-claims asserted against it. By stipulation at oral argument, the decision on the present motion in this case shall be fully applicable to the complaint in the Belinc action (Tr. p. 4).

The Sprung complaint alleges that Command breached its duty to provide sufficient security to protect residents (ninth cause of action); was negligent in the hiring and supervision of employees charged with providing security services (tenth cause of action); and breached its contract with Amalgamated to provide security [*2]services for the Building (eleventh cause of action). Amalgamated and Cooper answered and asserted a cross-claim against Command seeking indemnification or contribution.

When considering a motion to dismiss, it is well settled that "(i)nitially, the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]). The pleading is to be afforded a liberal construction (CPLR 3026), and the court should accept as true the facts alleged in the complaint, according plaintiff "the benefit of every possible favorable inference" (Leon v. Martinez, 84 NY2d 83, 87-88 [1995]).

The motion, which relies on the terms of Command's contract with Amalgamated (the "Agreement"), is more properly viewed as a motion pursuant to CPLR 3211(a) 1 for an order dismissing the complaint based on a defense founded upon documentary evidence.[FN1] Dismissal under that provision "is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (Ladenburg Thalmann & Co., Inc. v. Tim's Amusements, Inc., 275 AD2d 243, 246 [1st Dept. 2000]).

The Agreement provides for Command to furnish "uniformed or plainclothes guards and/or other security personnel ... at such location or locations from such starting dates and times and during such hours with such special equipment as radios, patrol cars, watch clocks, etc. as Command Security Corporation and [Amalgamated] shall mutually agree upon in writing," with Amalgamated to pay Command $10.50 per hour for each security officer provided. The Agreement further provides: "Insurance Client [Amalgamated] acknowledges that Command Security Corporation is not an insurer. . . . The services provided under this agreement are solely for the benefit of (Amalgamated) and neither this agreement nor any services rendered thereunder shall give rise to, or shall be deemed or construed so as to confer any rights on any other party as a third party beneficiary or otherwise [matter omitted].[FN2] Command Security Corporation shall be liable for personal injury or property damage resulting directly from the negligent performance of the [*3]services rendered under this agreement with the following limits: 1. Workman's Compensation covering Security Personnel engaged in the furnishing of services under this agreement, including employer's liability, with statutory limits.2. Personal injury (which includes false arrest, detention, or imprisonment, malicious prosecution, libel, slander, defamation of character or violation of rights of privacy) with a limit of $30,000,000 per occurrence.3. Property damage and bodily injury with a combined single limit of $80,000,000 per occurrence.Command Security Corporation shall not be liable for failure to perform this agreement due to any cause totally beyond Command Security Corporation's control for any consequential or special damages, anything herein to the contrary not withstanding.G. SERVICEThe services to be rendered under this agreement by Command Security Corporation shall be in conformity with operating procedures mutually agreed upon by (Amalgamated) and Command Security Corporation. If, at the request of (Amalgamated), Security personnel are assigned duties other than those agreed to by Command Security Corporation, (Amalgamated) shall assume complete responsibility for any and all liability for any and all liability arising therefrom.

Command argues that its contract with Amalgamated specifies that its services were to be provided solely for the benefit of Amalgamated, and does not confer any benefits or rights on any third parties, and therefore plaintiff has no claim against it. In light of the clearly expressed intention to preclude claims by third parties under the Agreement, the breach of contract claim (eleventh cause of action) must be dismissed (see Pagan v. Hampton Houses, Inc., 187 AD2d 325 [1st Dept. 1992]; Wayburn v. Madison Land Limited Partnership, 282 AD2d 301 [1st Dept. 2001]). In any event, plaintiff does not claim to be a third-party beneficiary of the Agreement (Tr. p. 17).

Notwithstanding the absence of a direct or third-party beneficiary contractual claim, plaintiff may be able to assert a tort claim arising from negligent performance [*4]of contractual duties by Command, as "[n]ot uncommonly, parties outside a contract are permitted to sue for tort damages arising out of negligently performed or omitted contractual duties" (Palka v. Servicemaster Management Services Corp., 83 NY2d 579, 586 [1994]). Although "a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party, ... a party who enters into a contract to render services may be said to have assumed a duty of care and thus be potentially liable in tort to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties launch(es) 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" (Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136, 138-140 [2002]).

Here plaintiff claims that Amalgamated turned over to Command the duty to provide security to the tenants of the Building (Tr. pp. 18, 32). At this stage of the litigation that factual claim cannot be resolved as the Agreement, as quoted above, specifies that the number of security personnel to be provided and the locations to be covered and the times of service and the equipment to be employed are left to future agreement between the parties, and the terms of such future agreements (if any) have not been set forth in the papers submitted.

In James v. Jamie Towers Housing Co., Inc., 294 AD2d 268 [1st Dept. 2002], plaintiff was attacked in the vestibule of defendant's building. Besides suing the landlord, plaintiff named the security company employed by the landlord because the guard assigned to the building was not in the lobby at the time of the assault, but rather was patrolling the parking lot. In granting summary judgment dismissing the action against the security company, the majority in the Appellate Division interpreted the security agreement as not requiring a guard to be in the lobby at all times. It thus concluded that the security company "could not be held liable for the assault absent proof that a failure by its personnel to perform their contractual duties contributed to the occurrence of the incident" (p. 271), and that "as an independent security contractor, (it) can only be held liable for failing to provide the level of security required by its contract with ... the landowner" (ftnt 2). The two dissenting judges interpreted the contract as requiring the lobby to be patrolled at all times, stating that "[a]t most, (contrary) testimony raises a question of fact as to whether appellant exercised due care in the performance of its contractual obligations; thus, it precludes the grant of summary judgment" (p. 274). The Court of Appeals affirmed the dismissal (99 NY2d 639 [2003]), finding that "plaintiffs failed to raise a triable issue of fact concerning the scope and breach of that duty" (p. 642).

Command asserts that the claims against it must be dismissed based on the [*5]recent First Department decision in Anokye v. 240 East 175th Street Housing Development Fund Corporation, 16 AD3d 287 (2005), where the court on a motion for summary judgment held that "the complaint against the security company was properly dismissed since the security company in its contract with the building owners did not expressly assume any protective duty enforceable by the tenants" (p. 288), citing Gonzalez v. National Corporation for Housing Partnerships, 255 AD2d 151 [1st Dept. 1998], where, on an application for summary judgment, the court "found no duty arising out of a contract to a third party by a contracting party unless that party directly undertook to confer benefits on the putative beneficiary or upon a class of persons to whom the putative beneficiary belonged" (p. 152).

Here, as aforesaid, the Agreement leaves to future negotiations between the parties the extent of security to be provided by Command. It also contains ambiguous language as it provides that it shall not be "construed so as to confer any rights on any other party as a third party beneficiary," but in the next sentence states that Command "shall be liable for personal injury or property damage resulting directly from the negligent performance of the services rendered under this agreement," with a limit of liability for personal injury of $30,000,000 per occurrence.

Since as of the time of the making of this pre-discovery motion addressed to the pleading, plaintiff had not had the opportunity to determine the scope of the duties assumed by Command, which the Agreement states were subject to future negotiations with its co-defendants, the court cannot determine whether Command assumed a duty of care to the tenants of the Building and, if so, the extent thereof, and whether it breached such duty and thus is subject to liability in tort. Consequently, its motion to dismiss the complaint and the cross-claims of the co-defendants is denied, with the exception of the eleventh cause of action which is dismissed.

This decision constitutes the order of the court.

Dated: January 4, 2006______________

J.S.C. Footnotes

Footnote 1:Amalgamated and Cooper declined the court's suggestion to convert the motion to one for summary judgment (Tr. p. 9).

Footnote 2:The omitted clause, which is still legible, would have required Amalgamated to indemnify Command against any claim brought against it by third parties.