KYLIE LONG v. [And other Third-Party Actions] (2024)

Order, Supreme Court, New York County (James d'Auguste, J.), entered August 15, 2022, which denied defendant Cushman & Wakefield, Inc.'s motion for summary judgment dismissing the complaint against it, unanimously affirmed, without costs.

Plaintiff tripped and fell on a chair in her cubicle, sustaining injuries, while getting up to activate the motion sensors that controlled the lighting that had gone off in her employer's office building.  The court correctly determined that issues of fact existed as to whether defendant, which had contracted with plaintiff's employer to provide property management services, owed a duty of care to plaintiff (see Espinal v. Melville Snow Contrs., Inc., 98 N.Y.2d 136 [2002] ).  There were issues of fact as to whether plaintiff detrimentally relied on defendant's continued performance of its contractual duties, and whether defendant entirely displaced the employer's duty to maintain the premises safely (see id. at 140).  Defendant's contention that plaintiff cannot claim detrimental reliance absent plaintiff's actual knowledge of the property management agreement between defendant and her employer is improperly raised for the first time on appeal and, in any event, unavailing in light of plaintiff's testimony, which raises an issue of fact as to her knowledge of the agreement.

Contrary to defendant's contention, the court properly considered whether the Espinal exceptions applied.  Plaintiff's pleadings sufficiently apprised defendant that she was invoking the total displacement exception and, in any event, defendant raised the exception on its motion for summary judgment, precluding any claim of surprise or prejudice (see Valenti v. Camins, 95 AD3d 519, 522 [1st Dept 2012] ).  While plaintiff did not plead detrimental reliance, defendant has not argued that it was prejudiced by plaintiff's late invocation of that exception in her opposition to defendant's summary judgment motion (see Kimso Apts., LLC v. Gandhi, 24 NY3d 403, 411 [2014] ).  The court implicitly determined that no issue of fact exists as to the first Espinal exception (that defendant launched a force or instrument of harm) and plaintiff did not cross-appeal from the court's order.  In any event, evidence of defendant's alleged failure to fix the motion sensors is insufficient to raise an issue of fact as to whether defendant launched the instrument of harm that caused her accident (Skeete v. Greyhound Lines, Inc., 209 AD3d 415, 416 [1st Dept 2022] [“a defendant who neglects to make the accident site ‘safer – as opposed to less safe – than it was before’ the defendant came upon the site is not liable pursuant to the Espinal exception”], quoting Church v. Callanan Indus., 99 N.Y.2d 104, 112 [2002] ).

We decline defendant's invitation to search the record and grant it summary

judgment on its comparative negligence affirmative defense, which was raised for the first time on appeal.

The Decision and order of this Court entered

herein on September 26, 2023 is hereby recalled

and vacated (see M–2023–04679 decided simultaneously

herewith).