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Aiello v. Burns International Security Services Corp.

Supreme Court of New York, First Department

September 3, 2013

Rachel Aiello, etc., Plaintiff-Appellant,
v.
Burns International Security Services Corporation, Defendant-Respondent, Command Security Services, Inc., Defendant, Saint Vincents Catholic Medical Centers of New York, et al., Defendants-Appellants.

Plaintiff and defendants St. Vincents Medical Centers of New York, Richmond University Medical Center, RUMC-Bayley Seton, Bayley Seton Hospital, Archna Sarwal, M.D. and Adriana Boiangiu, M.D. appeal from the order of the Supreme Court, New York County (Marcy S. Friedman, J.), entered July 23, 2012, which granted defendant Burns International Security Services Corporation's motion for summary judgment dismissing the complaint and cross claims asserted against it.

Law Offices of William Cafaro, New York (Steven M.Pivovar of counsel), for Rachel Aiello, appellant.

Bartlett, McDonough & Monaghan, LLP, Mineola(Robert G. Vizza and Patricia D'Alvia of counsel), for Saint Vincents Catholic Medical Centers of New York, Richmond University Medical Center, RUMC-Bayley Seton, Bayley Seton Hospital, Archna Sarwal, M.D., and Adriana Boiangiu, M.D., appellants.

Marin Goodman, LLP, Harrison (Russell S. Jamison ofcounsel), for respondent.

Peter Tom, J.P., Rolando T. Acosta, Dianne T. Renwick, Leland G. DeGrasse, Rosalyn H. Richter, JJ.

RENWICK, J.

Plaintiff commenced this wrongful death action as administratrix of the estate of her deceased husband, Jason Aiello. Plaintiff alleges that defendants were negligent in allowing her husband to escape from the emergency room of a psychiatric care unit. At the time, Aiello, a retired NYPD Sergeant, had been admitted to the unit but was waiting for an in-patient bed to become available. After the hospital elopement, Aiello was shot and killed in front of his home during an armed confrontation with the police. Plaintiff sued, among others, the hospital and the security agency retained by the hospital to provide security at the psychiatric care unit. Supreme Court, however, dismissed the claims asserted against the agency on the ground that, as a matter of law, the agency did not owe plaintiff a duty of care in the performance of its contract with the hospital. A threshold issue addressed in this appeal is whether the security service agreement, which disavows any third-party beneficiaries, was rendered unenforceable by the contracting parties' failure to set forth, in writing, the security agency's duties.

Factual and Procedural Background

The psychiatric care unit where the elopement took place is part of defendant Richmond University Medical Center (RUMC), a hospital located in Staten Island. The hospital occupies buildings that were formerly St. Vincent Catholic Medical Centers of New York. RUMC has adjunct facilities at the Bayley Seton Hospital, where it operates several clinics, including the psychiatric care unit at issue here.

Security Agreement

Pursuant to several renewed contracts starting in August 2007, defendant Burns International Security Services Corporation (Burns) was retained to supply security guards to the psychiatric care unit at Bayley Seton. Specifically, on August 27, 2007, RUMC and Burns executed a "security services agreement, " which provided that "security services will commence on TBD and will continue until terminated." With regard to compensation, the agreement delineates four different rates of hourly compensation for four different positions: "Officer I, " "Officer II, " "Officer III, " and "Supervisor."

Paragraph 1, under "terms and conditions, " defines the "scope of services, " and provides as follows: "[Burns] will provide services pursuant to this Agreement in accordance with mutually-acceptable, written security officer, patrol officer or alarm response orders (which are incorporated into this Agreement by this reference). [Burns] will not be obligated to perform any duties or services (and will bear no responsibility for duties or services) other than expressly specified in such orders or this Agreement."

Paragraph 4 provides that RUMC must give Burns notice of any claim "arising out of or relating to this Agreement" within 30 days of the occurrence, and that "[n]o action to recover for any Claim will be instituted or maintained against [Burns] unless said action is instituted no later than 12 months following the date of the occurrence."

Paragraph 5(b) provides as follows: "[Burns] agrees to and will indemnify, defend and hold [RUMC] harmless from and against any Claims arising from [Burns's] performance of the services under this Agreement, but only to the extent the Claim is caused by the negligence of [Burns]."

Paragraph 5(h) provides as follows: "The services provided under this Agreement are solely for the benefit of [RUMC], and neither this Agreement nor any services rendered hereunder confer any rights on any other party, as a third-party beneficiary or otherwise."

Paragraph 17 is a merger clause, and provides, in relevant part, that "[n]o representations, inducements, promises or agreements of [Burns] not embodied herein will be of any force or effect, " and "[n]o changes to this Agreement will be binding on [Burns] unless approved in writing."

Testimony Regarding Burns's Security Duties

Michael Esposito was the director of security and public safety at RUMC. He delegated to his assistant, Vincent Forgione, the negotiation of the security service contract with Burns for Bayley Seton. Forgione entered into the aforementioned contract with Burns after consulting with Linda Paradiso, who was the director of nursing and in-patient services at Bayley Seton. Paradiso told Forgione that she needed security guards to be posted at, at least, three different locations in the psychiatric care unit: Intake (on the third floor); the Comprehensive Psychiatric Emergency Program (C-PEP on the first floor) and a supervisory post (on the third floor, down the hall from Intake). Paradiso also recommended ...


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