SALOMON v. Levy Restaurants, Defendant–Appellant. (2020)

Order, Supreme Court, New York County (Robert D. Kalish, J.), entered April 26, 2018, which denied defendant Levy Restaurants' (Levy) motion for summary judgment dismissing the complaint and all cross claims against it, unanimously affirmed, without costs.

Plaintiff commenced this action alleging personal injuries proximately caused by, inter alia, purported negligence by Levy in the performance of its obligations under an agreement with defendant United Stated Tennis Association (USTA) to provide food services, as well as to manage and clean the venues, at the U.S. Open Tennis Center where its food services were offered.  Levy contends that, as a contractor, it does not owe a duty of care to plaintiff, a non-contracting third party, and that none of the exceptions to the general rule apply (see generally Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ).  Levy demonstrated that two of the Espinal exceptions do not apply, because the terms of its food services agreement with USTA show that it did not entirely displace USTA's duty to safely maintain the premises, and there is no evidence that plaintiff relied on Levy's performance of its contractual duties.  However, plaintiff's factual allegations further claimed that Levy, in the negligent performance of its food services obligations, launched an instrument of harm by creating or exacerbating an alleged hazardous wet condition of the carpet next to the tiled floor where she slipped and fell.

Levy's moving papers did not establish prima facie that it did not create or exacerbate the wet condition through negligent performance of its contractual duties.  Inasmuch as there is evidence in the record that the carpet on which plaintiff walked immediately prior to her accident was wet, that Levy's own representative acknowledged that air blowers were operating in the immediate vicinity where plaintiff fell, and that the source of the watery condition in the carpet was not established, Levy could not meet its burden by relying solely on the limited duty owed by a contractor (see Lopez v. New York Life Ins. Co., 90 A.D.3d 446, 934 N.Y.S.2d 136 [1st Dept. 2011] ).  Upon a movant's failure to establish prima facie entitlement to summary judgment, the motion is to be denied notwithstanding the strength of the opponent's evidence (see generally Penava Mech. Corp. v. Afgo Mech. Servs., Inc., 71 A.D.3d 493, 495–496, 896 N.Y.S.2d 349 [1st Dept. 2010] ).  Further, to the extent Levy's prima facie case was reliant upon hearsay in identifying the purported cause of the wet condition, and since there was conflicting information as to the potential cause of the watery condition, credibility and factual issues are raised.