- June 13, 2019
Mirman, Markovits & Landau, P.C., New York, NY (Ephrem J.
Wertenteil of counsel), for appellant.
Schwab Katz & Dwyer, LLP, New York, NY (Paul M. Tarr of
counsel), for respondent.
REINALDO E. RIVERA, J.P. LEONARD B. AUSTIN COLLEEN D. DUFFY
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
plaintiff appeals from (1) an order of the Supreme Court,
Kings County (Edgar G. Walker, J.), dated March 2, 2016, and
(2) a judgment of the same court dated March 22, 2016. The
order granted the defendant's motion for summary judgment
dismissing the complaint. The judgment, upon the order, is in
favor of the defendant and against the plaintiff dismissing
that the appeal from the order is dismissed; and it is
further, ORDERED that the judgment is reversed, on the law,
the defendant's motion for summary judgment dismissing
the complaint is denied, the complaint is reinstated, and the
order is modified accordingly; and it is further, ORDERED
that one bill of costs is awarded to the plaintiff.
appeal from the order must be dismissed because the right of
direct appeal therefrom terminated with entry of the judgment
in the action (see Matter of Aho, 39 N.Y.2d 241,
248). The issues raised on the appeal from the order are
brought up for review and have been considered on the appeal
from the judgment (see CPLR 5501[a]).
plaintiff commenced this action against the defendant, a
cleaning service contractor, which provided services in the
building in Manhattan where the plaintiff worked. The
plaintiff seeks damages for personal injuries she alleges she
sustained when she slipped and fell in the building. The
defendant moved for summary judgment dismissing the complaint
on the ground that it did not owe the plaintiff a duty of
care. The Supreme Court granted the motion and dismissed the
complaint. The plaintiff appeals.
a contractual obligation, standing alone, will not give rise
to tort liability in favor of a third party (see Espinal
v Melville Snow Contrs., 98 N.Y.2d 136, 140). However,
there are 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,
launche[s] 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"
(id. [citations and internal quotation marks
omitted]). On a motion for summary judgment, "[a]s part
of its prima facie showing, a contracting defendant is only
required to negate the applicability of those
Espinal exceptions that were expressly pleaded by
the plaintiff or expressly set forth in the plaintiff's
bill of particulars" (Glover v John Tyler Enters.,
Inc., 123 A.D.3d 882, 882; see Hagan v City of New
York, 166 A.D.3d 590, 592; Laronga v Atlas-Suffolk
Corp., 164 A.D.3d 893, 895-896).
the plaintiff alleged only one of the Espinal
exceptions: that the defendant created or launched an
instrument of harm. Thus, in support of its motion for
summary judgment dismissing the complaint, the defendant was
required to establish, prima facie, that it did not create or
launch an instrument of harm (see Barone v
Nickerson, 140 A.D.3d 1100, 1102; Reece v J.D.
Posillico, Inc., 131 A.D.3d 596, 597).
to the determination of the Supreme Court, the defendant
failed to establish its prima facie entitlement to judgment
as a matter of law, as it did not establish that it did not
create or launch an instrument of harm. In support of its
motion, the defendant submitted, inter alia, transcripts of
the deposition testimony of its employee and the plaintiff.
According to the plaintiff, just prior to the accident, she
opened a closed door to enter the reception area of the
building and, after only walking approximately two feet
beyond the door and into the reception area, she slipped and
fell. She testified that she did not see that the floor was
wet prior to falling and that it was only after she fell that
she saw and felt liquid on the floor and observed someone
mopping the floor 20 feet away from her. She testified that,
after she fell, she saw only one "wet floor" sign
approximately 20 feet away from where she fell. In contrast,
the defendant's employee testified that he erected
approximately four warning signs which were spaced about five
to seven feet apart. He also testified that he mopped the
accident site one minute prior to the fall, using a mixture
of water and cleaning fluid and that, at the time of the
accident, he was mopping the floor about eight feet away from
where the plaintiff fell. Under these circumstances, the
defendant's submissions demonstrated the existence of
triable issues of fact regarding the location of "wet
floor" signs and whether the wet floor or the signs were
readily observable by a reasonable use of the plaintiff's
senses as she entered the area through a closed door (see
generally Rivero v Spillane Enters., Corp., 95 A.D.3d
984, 985). Thus, the defendant failed to establish, prima
facie, that it did not create the condition that caused the
plaintiff to fall or that it provided adequate notice of the
alleged hazardous condition (see Bruce v Edgewater Indus.
Park, LLC, 169 A.D.3d 753, 754; Levine v G.F.
Holding, Inc., 139 A.D.3d 910, 911-912).
the burden never shifted to the plaintiff to provide
evidentiary proof sufficient to raise a triable issue of
fact, and the Supreme Court should have denied the