Aiello v Burns Intl. Sec. Servs. Corp.

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Aiello v Burns Intl. Sec. Servs. Corp. 2012 NY Slip Op 31956(U) July 17, 2012 Supreme Court, New York County Docket Number: 117442/08 Judge: Marcy S. Friedman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. NNED ON 712312012 [* 1] SUPREME COURT OF THE STATE O F NEW YORK NEW YORK COUNTY 3 MARCY S. FRIEDMAN, J.S.C. PRESENT: PART: Justlco Index Number : 117442/2008 AIELLO, RACHEL vs. BURNS INTERNATIONAL SECURITY SEQUENCE NUMBER : 007 INDEX NO. MOTION DATE MOTION SEQ NO. SUMMARY JUDGMENT Notice of MotlonlOrder to Show Cause Anrworlng Affldavlb C S E m R ,were read on thls otlon tolfor The followlng papem, numberad I to c Rnz .A- - Affldavltl - ExhiblG - Exhlbltl Rsplylng A m d a v b Upon the foregolng pipem, It Is ordered that thls motlqn i s Dated: 1. CHECK ONE: 7- i 7 - l L ..................................................................... 2. CHECK AS APPROPRIATE: ........................... 3. CHECK IF APPROPRIATE: MOTION IS: ................................................ MARCY 0 CASE DISPOSED 0GRANTED 0DENIED 0SETTLE ORDER DO NOT POST s p J.S,C, NON-FINAL DISPOSITION 0GRANTED IN PART 0OTHER 0SUBMIT ORDER FlDUCl,ARYAPPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YOFX - PART 57 PRESENT: Hon. Marf.cyS,Friedman, JSC X RACHEL AIELLO, Individually, and as Administratrix of the Estate of JASON JOHN AIELLO, deceased Index No.: 117442/08 Plaint@(@, - against - DECISION/ORDER FILED BURNS INTERNATIONAL SECURITY SERVICES COW., et al., Jut' 23 ;)M2 Defendun t (s) . X NEW YORK COUNlY CLERKS OFFICE In this personal injury action, Rachel Aiello seeks damages for the death of her husband, Jason Aiello, who died in a shoot-out with police after he eloped (it., escaped) from a psychiatric unit at the Bayley Seton Hospital, a facility operated by Richmond University Medical Center (RUMC). Defendant Securitas Security Services USA, sued as Burns International Security Services Corporation (Burns), moves for summary judgment dismissing the complaint and the cross-claims of the various hospital defendants (collectively, the RUMC defendants) against it. The complaint alleges a cause of action, among others, against Burns for negligence. Bums contends that the complaint must be dismissed on the ground that plaintiffs decedent was not a third-party beneficiary of Burns' contract with RUMC to provide security services at the facility 1 [* 3] The standards for summary judgment are well settled. The movant must tender evidence, by proof in admissible form, to establish the cause of action sufficiently to warrant the court as a I matter of law in directing judgment. (CPLR 3212[b]; Z e ewYor , 4 9 NY2d 557,562 [ 19801.) Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers. (Winemad v New York Uuiv. Med. Ctr,, 64 NY2d 85 1, 853 [ 19851.) Once such proof has been offered, to defeat summary judgment < theopposing party must show facts sufficient to require a trial of any issue of fact (CPLR 3212, subd. [b]. (Zuckermaq, 49 NY2d at 562.) It is further settled that an injured party may not recover as a third-party beneficiary of a contract unless it clearly appear[s] from the provisions of the contract that the parties thereto intended to confer a direct benefit on the alleged third-party beneficiary. , . . Pil?kefion s. Inc,, 52 AD2d 760 [ lgt Dept 19761, affd for reasons stated below 41 NY2d 938 [1977]; Sge e x . Gonzalez v National C Q. for Hous. Pm-tnerships, 255 AD2d 15 1 [ lAt ~ Dept h 19981, Iv denied 93 NY2d 8 12 [19991; pabbs v &on $ec.. I,pc., 12 AD3d 396 [2d Dept 20041.) The written contract between Burns and RUMC states that Burns will provide services pursuant to this Agreement in accordance With mutually-acceptable, written security officer, patrol offcer or alarm response orders (which are incorporated into this Agreement by this reference). (Terms & Conditions, 7 1.) It is undisputed that no written orders were made at or before plaintiffs decedent s elopement from the RUMC facility. The RUMC defendants and plaintiff take the position that the written contract is therefore an unenforceable agreement to agree. The court need not, however, reach the issue of the enforceability of the written contract. 2 [* 4] Whether the contract was written or oral, there is no evidence in the record that fully details the scope of Burns responsibilities for security. Nevertheless, it is undisputed that the Burns did not wholly displace the RUMC defendants responsibility to provide security. Thus, for example, Vincent Forgione, RUMC s Assistant Vice-president of Facilities at the time of the incident, testified that his Director of Security, Michael Esposito, had authority to direct Burns security guards regarding their performance. ( Forgione Dep. at 85-86.) a Linda Paradiso, RUMC s Director of Nursing, testified that in 2007, when St. Vincent s Hospital announced that it would no longer provide security at the RUMC facility, Burns was hired to perform security. She worked with Forgione in determining the needs of her programs at the psychiatric unit for security services from Burns. (Paradiso Dep. at 10-14.) She further testified that she terminated Burns staff if they were not following the rules, and that grounds for termination would be not following the direction of RUMC staff. (kat 22-23.) Paradiso also testified that RUMC, under her jurisdiction, provides crisis intervention training to all staff, including Burns security. (Tp at \ 23-24.) On this record, the court finds as a matter of law that Burns did not entirely displace[] or comprehensively absorb[] RUMC s duty to provide security to protect patients and staff. -I RoU-KrP v Twin Parks Southeast Houses. hc,, 70 AD3d 484,486 [lSt Dept 2010].) n Espiual v Melville Snow C Q ~ Inc,S(98 NY2d 136,140 [2002]), the Court of I ., ~ Appeals identiflied1 three situations in which 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, launche[s] a force or instrument of harm ; (2) where the plaintiff 3 [* 5] 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. (internal citations omitted). Here, Bums cannot be found to have launched an inshment of harm or, put another way, to have create[d] or exacerbaterd] a dangerous condition, but at most neglected to make the psychiatric unit safer. (& Church v Callanan Indus., 99 NY2d 104, 111-1 12 [2002].) Nor does this case fall within the second Espinal situation. Mr. Aiello s wife acknowledges that she did not know what kind of security system [RUMC] had or whether they had their own security guards or hired an outside security company. (Rachel Aiello Aff.In Opp., 7 7.) While she relied on the hospital having security ( d she did not rely on particular services of Burns. In I , addition, as held above, Burns did not displace RUMC s responsibilities for security. The court accordingly holds that plaintiffs complaint should be dismissed as against Burns. With respect to the RUMC defendants cross-claims, Burns correctly argues that the I I claim for contractual indemnification must fail, as the RUMC defendants argue that the written contract, containing the indemnification provision, is unenforceable. The court further finds that to the extent the cross-claims seek common law indemnification or contribution, they must be dismissed, as the RUMC defendants (and plaintiff) have failed to raise a triable issue of fact as to whether plaintiff was a third-party beneficiary of Burns contract or whether Bums had an independent duty of care to plaintiff. It is accordingly hereby ORDERED that Burns motion is granted to the extent of dismissing the complaint and the RUMC defendants cross-claims in their entirety as against Burns. 4 [* 6] This constitutes the decision and order of the court. Dated: New York, New York July 17,2012 5

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