Liberty Ins. Corp. v U.S. Sec. Assoc., Inc.
Annotate this CaseDecided on October 26, 2006
Supreme Court, New York County
Liberty Insurance Corporation a/s/o Genny Byblos USA, Inc. a/k/a Genny USA, Inc., Plaintiff,
against
U.S. Security Associates, Inc., Defendant.
111883/04
For Plaintiff:
Robert W. Phelan, Esq.
Cozen O'Connor
45 Broadway, 16th Floor
New York, New York 10006
For Defendant:
Wanda Smith Campbell, Esq.
O'Connor, Redd & Sklarin, LLP
200 Mamaroneck Avenue
White Plains, New York 10601
Michael D. Stallman, J.
Motion sequence numbers 001, 002 and 003 are consolidated for disposition.
In motion sequence number 001, plaintiff Liberty Insurance Corporation a/s/o Genny Byblos USA, Inc. a/k/a Genny USA, Inc. (Liberty) moves to strike defendant's answer, or alternatively, for an order of preclusion and a missing evidence charge, for spoliation of evidence.
In motion sequence number 002, defendant U.S. Security Associates, Inc. (Security) moves to strike the note of issue based upon plaintiff's failure to produce adequate discovery.
In motion sequence number 003, defendant seeks summary judgment dismissing the complaint because defendant had no duty to plaintiff.
BACKGROUND
Plaintiff brought this action after paying over $137,000 to its insured, Genny Byblos USA, Inc. (Genny USA), as a result of a claim for damages when Genny USA's premises were burglarized. Security provides unarmed security guards who screen people entering and leaving the building, located at 650 Fifth Avenue, New York, New York, pursuant to a contract with the building owner. The building is a 35-story commercial building, and Genny USA is a clothing company, located on the 18th floor, that engages in wholesale and retail sales.
On the night of the burglary, September 16, 2001, the regular guard was not on duty. Security retained a substitute guard from its list of substitute guards. The replacement guard, Edward Rodriguez (Rodriguez), was licensed, and had worked at the building on one prior occasion.
At some time after midnight, a person appearing to be a messenger came to the door of the building. Rodriguez told him that he could not make a delivery at night, and would have to return in the daytime. The man appeared not to understand, and Rodriguez went to the door and opened it in order to explain further. The man then drew a gun, and together with another man, tied Rodriguez up and placed him in a freight elevator. The men were in the building for some time. After they left, Rodriguez freed himself and notified his supervisor and the police about the incident.[*2]At an examination before trial, Kenneth Wrobel (Wrobel), the supervisor of security guards staffed at the building, testified that at the time of the incident, the building was equipped with video cameras for security purposes. Those cameras were in the basement and stairwell areas of the building, not in the lobby. Wrobel saw the video tapes from that night, as did the police. He stated that there was nothing on them with respect to the incident, and that the police said that the tapes were useless.
Wrobel also wrote up two incident reports from that night, and added to a third. Incident reports No.85 and #86 concerned the Genny USA break-in. Incident report #87, which was not produced, apparently concerned a break-in the same night, by the same perpetrators, into an establishment on the 17th floor of the building.
At his deposition, Wrobel stated that the prior incident reports (## 1-84) would have concerned anything that happened in the building that was reported to the security guard. Some of the reports concerned intra-office thefts. Most of them dealt with property damage and maintenance concerns. He also testified that tenants provide their own security in their space in the building. Some tenants have alarms or cameras, but Genny USA did not.
Security's Motion for Summary Judgment
Security contends that it has no duty to Genny USA, and consequently, cannot be found liable to Liberty. Liberty maintains that Genny USA was a third-party beneficiary of the contract between the landlord and Security. It further avers that Security was negligent in the hiring and supervision of Rodriguez, and that it breached the provisions of the contract that called for eight hours of pre-site classroom training and eight hours of supervised on-the-job training. Further, it alleges that there is no proof that the guard was licensed, as required by the contract.
The first issue that must be addressed is whether Liberty, as subrogee of Genny USA, has standing to raise a breach of contract claim as against Security. There is no question that only Security and the building owner were parties to the contract; Genny USA was not a party. Thus, the question is whether, as a result of entering into the contract, Security had a duty to Genny USA because Genny USA was a tenant in the building.
In order for Security to be found to have a duty to Genny USA, Liberty would have to demonstrate that Genny USA was a third-party beneficiary of the contract, not merely an incidental beneficiary. See Wayburn v Madison Land Ltd. Partnership, 282 AD2d 301 (1st Dept 2001). In the contract that the parties submitted to the Court, Security did not assume any express obligation to protect the property of any of the tenants, or any other protective duty enforceable by the tenants. See Anokye v 240 East 175th St. Hous. Dev. Fund Corp. 16 AD3d 287 (1st Dept 2005); Gonzalez v National Corp. for Hous. Partnerships, 255 AD2d 151 (1st Dept 1998).
Liberty also has not demonstrated that Security had any duty in tort to Genny USA. In order to hold a contracting party liable in tort to a non-party to the contract, there must be a showing that the wrongdoer launched a force or instrument of harm; or that the performance of a contractual obligation induced detrimental reliance on continued performance; or that the contract between the parties was comprehensive and exclusive so that it displaced any other party's role in carrying out the duties. Espinal v Melville Snow Contrs., Inc., 98 NY2d 136, 139-140 (2002). Defendant did not launch the force of harm, nor does the record support that defendants' contractual obligation caused Genny USA to rely on the contractual obligation to its detriment. Security also did not have exclusive control over security in the building, as evidenced by the landlord maintaining a right to [*3]determine the adequacy and fitness of the service, and the additional security devices which some of the tenants installed in their premises.
Consequently, the second cause of action, for breach of contract, is dismissed.
Defendant also seeks to dismiss the first cause of action, for negligent hiring and supervision. Initially, it is noted that, because it has been determined that Genny USA was not a third-party beneficiary of the contract, Liberty has no standing to raise the question of negligent hiring and supervision. Even if it did, however, the cause of action would be dismissed. A cause of action for negligent hiring and supervision is appropriate where the employee engaged in dangerous behavior that harmed others; in other words, when the employee engaged in tortious or criminal behavior. Furthermore, the employer must have known, or have had reason to know, of the perpetrator's dangerous tendencies. Sheila C. v Povich, 11 AD3d 120 (1st Dept 2004). Here, the guard was a victim of armed burglars; he was not one of the burglars. Thus, the first cause of action is also dismissed.
In opposing the motion, Liberty contends that the motion is "untimely." It proceeds to argue that discovery has not been completed. If, by untimely, Liberty is referring to the allegedly missing discovery, its argument is unpersuasive. Liberty has not suggested any that analyzed missing items would cause the Court to reach a different result on the question of whether Genny USA was a third-party beneficiary of the contract, or why such facts would lie exclusively within defendant's knowledge. Under these circumstances, any supposedly missing discovery is not an adequate basis to avoid summary judgment. Liberty has not raised any other argument with respect to the opposition based upon what was denominated as "untimely." Plaintiff filed the note of issue on March 29, 2006; defendant brought this motion on May 10, 2006, originally returnable June 6, 2006.
Plaintiff's Motion to Strike Security's Answer
Plaintiff moves to strike defendant's answer based upon alleged spoliation of evidence. The specific evidence missing includes the videotapes from the surveillance cameras and incident reports numbers 1-84 and 87. This motion is moot in light of the outcome of the summary judgment motion. However, the Court notes that the evidence in the record demonstrates that the surveillance cameras were not located in the area where the incident took place, and therefore any claim of spoliation of necessary evidence is, to say the least, uncompelling. Furthermore, the incident reports were reports made with respect to any kind of minor or major incident that was reported to the security guards. Plaintiff has not demonstrated that Security has an obligation to keep them on the chance that there might be a future need for them. Neither has plaintiff demonstrated any prejudice to its case, in view of the police reports that it was able to obtain with respect to prior thefts from the building. Thus, even had the complaint not been dismissed, the relief requested would have been denied.
Security's Motion to Strike the Note of Issue
Defendant moves to strike the note of issue on the ground that plaintiff has not produced all of the discovery items required. Plaintiff contends that it did provide all discovery requested, and that anything else that defendant seeks is available from third parties or is publicly available.
In view of the grant of summary judgment dismissing the complaint, this motion, too, is moot.
CONCLUSION
Accordingly, it is hereby
ORDERED that plaintiff's motion to strike the answer (Seq. No. 001) is denied as moot; [*4]and it is further
ORDERED that defendant's motion to strike the note of issue (Seq. No. 002) is denied as moot; and it is further
ORDERED that defendant's motion for summary judgment (Seq. No. 003) is granted and the complaint is dismissed with costs and disbursements to defendant as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly.
Dated: October 26, 2006
New York, New York
ENTER:
s/
J.S.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
