FEZZA v. LEGAL SEA FOODS LLC (2026)

DECISION & ORDER

In two related actions, inter alia, to recover damages for personal injuries, which were joined for discovery and trial, Legal Sea Foods, LLC, a defendant in Action No. 1, Walt Whitman Mall, LLC, a defendant in Action Nos. 1 and 2, and Simon Property Group, Inc., a defendant in Action No. 2, appeal from an order of the Supreme Court, Suffolk County (David T. Reilly, J.), dated March 7, 2022.  The order, insofar as appealed from, granted the motion of City–Wide Sewer & Drain Service Corp., a defendant in Action No. 1 and sued in Action No. 2 as Citywide Sewer & Drain Service Corporation, for summary judgment dismissing the complaint in Action No. 1, the second amended complaint in Action No. 2, and all cross-claims insofar as asserted against it.

ORDERED that the appeal from so much of the order as granted that branch of the motion of City–Wide Sewer & Drain Service Corp. which was for summary judgment dismissing the complaint in Action No. 1 and the second amended complaint in Action No. 2 insofar as asserted against it is dismissed, without costs or disbursements, as Legal Sea Foods, LLC, Walt Whitman Mall, LLC, and Simon Property Group, Inc., are not aggrieved by that portion of the order (see CPLR 5511;  Mixon v. TBV, Inc., 76 AD3d 144, 156–157);  and it is further,

ORDERED that the order is affirmed insofar as reviewed, without costs or disbursements.

On February 22, 2014, Christopher Fezza, Michael Rosen, and Theresa Ann Wissert (hereinafter collectively the police plaintiffs), police officers employed by the Suffolk County Police Department, responded to a 911 call reporting a person in need of aid at a restaurant operated by Legal Sea Foods, LLC (hereinafter Legal Sea Foods), in the Walt Whitman Mall, which was owned by Walt Whitman Mall, LLC (hereinafter Mall LLC).  Steven C. Nelson (hereinafter the decedent), the general manager of the restaurant, was found unconscious in the basement of the restaurant and subsequently died as a result of carbon monoxide poisoning.  The police plaintiffs were also exposed to carbon monoxide while on the premises.  The Huntington Manor Fire Department detected the presence of carbon monoxide in the basement of the restaurant on the date of the incident.

The police plaintiffs commenced an action (hereinafter Action No. 1) to recover damages for personal injuries against Legal Sea Foods, Mall LLC, and City–Wide Sewer & Drain Service Corp. (hereinafter City–Wide).  David I. Nelson (hereinafter David), as administrator of the decedent's estate, commenced an action (hereinafter Action No. 2) to recover damages for personal injuries and wrongful death against Mall LLC, Simon Property Group, Inc. (hereinafter Simon), and City–Wide, sued therein as Citywide Sewer & Drain Service Corporation.  The two actions were subsequently joined for discovery and trial.  The police plaintiffs and David alleged, inter alia, that Legal Sea Foods, Mall LLC, and Simon (hereinafter collectively the restaurant defendants) negligently maintained the premises and that City–Wide was negligent in failing to discover a deteriorated pipe that caused the carbon monoxide leak during City–Wide's repair of a hot water heater four days prior to the incident.  Legal Sea Foods and Mall LLC asserted cross-claims against City–Wide for contribution, common-law indemnification, and contractual indemnification.  Thereafter, City–Wide moved for summary judgment dismissing the complaint in Action No. 1, the second amended complaint in Action No. 2, and all cross-claims insofar as asserted against it.  In an order dated March 7, 2022, the Supreme Court, among other things, granted City–Wide's motion.  The restaurant defendants appeal.

Generally, 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;  Gatanas v Community Servs.  Support Corp., 228 AD3d 836, 837).  “However, a party that enters into a contract to render services may be said to have assumed a duty of care, and thus, be potentially liable in tort to third persons, where (1) the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm, (2) the plaintiff detrimentally relies on the continued performance of the contracting party's duties, or (3) the contracting party has entirely displaced the other party's duty to maintain the premises safely” (Martinelli v. Dublin Deck, Inc., 198 AD3d 635, 637;  see Espinal v. Melville Snow Contrs., 98 N.Y.2d at 140;  Forbes v Equity One Northeast Portfolio, Inc., 212 AD3d 780, 781).  “[W]here any of the Espinal exceptions are pleaded in the complaint or the bill of particulars, a defendant contractor is required to demonstrate that those pleaded exceptions do not apply in order to establish its prima facie entitlement to judgment as a matter of law” (Nesbitt v. Advanced Serv. Solutions, 224 AD3d 841, 843;  see Rivera v. Sodexo, Inc., 233 AD3d 721, 723).

Here, the Supreme Court properly granted that branch of City–Wide's motion which was for summary judgment dismissing the cross-claims asserted against it (see Calle v. 16th Ave. Grocery, Inc., 219 AD3d 450, 452).  Viewed in the light most favorable to the restaurant defendants, as the nonmoving parties (see Nesbitt v. Advanced Serv. Solutions, 224 AD3d at 843), the complaint in Action No. 1, the second amended complaint in Action No. 2, and the bills of particulars alleged the first Espinal exception (see Calle v. 16th Ave. Grocery, Inc., 219 AD3d at 451).  The evidence submitted by City–Wide in support of its motion established, prima facie, that neither the police plaintiffs nor the decedent were parties to any agreement between it and Legal Sea Foods (see Forbes v Equity One Northeast Portfolio, Inc., 212 AD3d at 782;  Canciani v Stop & Shop Supermarket Co., LLC, 203 AD3d 1011, 1013) and that the repair work it performed four days prior to the incident neither launched an instrument of harm nor created or exacerbated the alleged dangerous condition at the restaurant (see Rivera v. Sodexo, Inc., 233 AD3d at 722;  Calle v. 16th Ave. Grocery, Inc., 219 AD3d at 452).

In opposition, the restaurant defendants failed to raise a triable issue of fact based on any of the Espinal exceptions (see Brito–Hernandez v. Superior Contr., 233 AD3d 1058, 1059;  Canciani v Stop & Shop Supermarket Co., LLC, 203 AD3d at 1013).  The opinion of the restaurant defendants' expert that the repair work performed by City–Wide exacerbated the damage to the water heater's combustion gas system and increased carbon monoxide emissions was speculative and conclusory and, thus, insufficient to raise a triable issue of fact (see Scott v Avalonbay Communities, Inc., 125 AD3d 839, 841).

The restaurant defendants' remaining contention is without merit.

BRATHWAITE NELSON, J.P., CHRISTOPHER, VENTURA and GOLIA, JJ., concur.