VIGNAPIANO v. Cushman Wakefield, Inc., et al., respondents. (2007)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Harkavy, J.), dated August 9, 2006, as granted that branch of the motion of the defendants Cushman Wakefield, Inc., and State Street Bank and Trust Company of Connecticut, National Association, which was for summary judgment dismissing the complaint insofar as asserted against the defendant Cushman Wakefield, Inc.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 Contrary to the plaintiff's contention, the Supreme Court properly granted that branch of the motion of the defendants Cushman Wakefield, Inc. (hereinafter Cushman & Wakefield), and State Street Bank and Trust Company of Connecticut, National Association, which was for summary judgment dismissing the complaint insofar as asserted against Cushman & Wakefield.  “[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” (Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485;  see Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d 220, 226, 557 N.Y.S.2d 286, 556 N.E.2d 1093;  Huttie v. Central Parking Corp., 40 A.D.3d 704, 705, 835 N.Y.S.2d 701).   Cushman & Wakefield established its prima facie entitlement to judgment as a matter of law by demonstrating that its management contract with the predecessor of the plaintiff's employer did not give rise to a duty of care to the plaintiff.   In opposition, the plaintiff failed to raise a triable question of fact as to whether she detrimentally relied on Cushman & Wakefield's continued performance of its duties (see Church v. Callanan Indus., 99 N.Y.2d 104, 111-112, 752 N.Y.S.2d 254, 782 N.E.2d 50;  Espinal v. Melville Snow Contrs., 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485;  Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d at 226, 557 N.Y.S.2d 286, 556 N.E.2d 1093).   In her examination before trial, the plaintiff testified that approximately two months before the accident, she called “[b]uilding management” to express concern that the shelves in her office were slanted downward on the ends, and in response, someone inspected the shelves.   However, the plaintiff only speculates that this inspector was an employee of Cushman & Wakefield, as opposed to an employee of her employer's in-house property management department.   Further, even if the inspector was an employee of Cushman & Wakefield, the plaintiff did not raise a triable question of fact as to whether Cushman & Wakefield's alleged nonfeasance in failing to discover the alleged defect in the shelves “ launche[d] a force or instrument of harm” (Espinal v. Melville Snow Contrs., 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485;  see Church v. Callanan Indus., 99 N.Y.2d at 112, 752 N.Y.S.2d 254, 782 N.E.2d 50).   Nor did the plaintiff raise a question of fact as to whether Cushman & Wakefield entirely displaced the duty of the plaintiff's employer to maintain the premises safely (see Espinal v. Melville Snow Contrs., 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485;  Church v. Callanan Indus., 99 N.Y.2d at 112, 752 N.Y.S.2d 254, 782 N.E.2d 50).   Not only did her employer maintain an in-house property management department at all relevant times, but the management contract at issue provided that the plaintiff's employer retained substantial control over the management and operation of the premises (see Roveccio v. Ry Mgt. Co., 29 A.D.3d 562, 562-563, 816 N.Y.S.2d 114;  Hagen v. Gilman Mgt. Corp., 4 A.D.3d 330, 331, 770 N.Y.S.2d 890;  cf. Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 611 N.Y.S.2d 817, 634 N.E.2d 189).