GIUSTIZIA v. Anchorage Marine Corp., appellant.

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Supreme Court, Appellate Division, Second Department, New York.

Raymond GIUSTIZIA, et al., Plaintiffs-Respondents, v. Alice RADAZO, etc., Defendant-Respondent, Anchorage Marine Corp., appellant.

Decided: August 19, 2002

DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, DANIEL F. LUCIANO and ROBERT W. SCHMIDT, JJ. Fiedelman & McGaw, Jericho, N.Y. (Carol A. Moore of counsel), for appellant. Michael F. Perrotta, Huntington, NY, for plaintiffs-respondents. Herzfeld & Rubin, P.C., New York, N.Y. (Herbert Rubin, Joseph E. Donat, David B. Hamm, and Neil R. Finkston of counsel), for defendant-respondent.

In an action to recover damages for personal injuries, etc., the defendant Anchorage Marine Corp. appeals (1) from an order of the Supreme Court, Suffolk County (Burke, J.), dated February 13, 2001, which denied its motion pursuant to CPLR 4404(a) to set aside a jury verdict and for judgment in its favor as a matter of law, and (2), as limited by its brief, from so much of a judgment of the same court, entered September 28, 2001, as, upon a jury verdict, is in favor of the plaintiffs and against it on the issue of liability.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is reversed insofar as appealed from, on the law, and the complaint is dismissed insofar as asserted against the appellant;  and it is further,

ORDERED that one bill of costs is awarded to the appellant.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).

On July 9, 1994, the plaintiffs Raymond Giustizia and Robert Nethercott sustained personal injuries as a result of carbon monoxide poisoning while they were guests on board a fishing boat owned and operated by Louis A. Radazo.   Along with Mary Giustizia, Raymond's wife, they asserted, inter alia, causes of action for negligence against Radazo, and Anchorage Marine Corp. (hereinafter Anchorage), which, pursuant to a contract with Radazo, maintained and serviced the boat.   Following a jury trial, the Supreme Court denied Anchorage's motion to set aside the verdict in favor of the plaintiff and against it, and entered a judgment dismissing the complaint and cross-claim insofar as asserted against the defendant Radazo and finding the defendant Anchorage 100% liable for the plaintiffs' injuries.

The Court of Appeals has identified “three situations in which a party who 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:  (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, ‘launches 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 safely maintain the premises” (Espinal v. Melville Snow Contractors, 98 N.Y.2d 136, 746 N.Y.S.2d 120, 773 N.E.2d 485, quoting Moch v. Rensselaer Water Co., 247 N.Y. 160, 168, 159 N.E. 896).

The record establishes that none of these exceptions to the general rule that a contractual obligation, standing alone, will not give rise to tort liability in favor of third parties, are applicable here.   The judgment therefore must be reversed insofar as appealed from, and the complaint dismissed insofar as asserted against Anchorage.

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