Atlantic Mutual Insurance v. United Security Group, Inc.

236 A.D.2d 338, 654 N.Y.S.2d 739, 1997 N.Y. App. Div. LEXIS 1659

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 27, 1997
• Status: Published

Opinion

—Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about September 4, 1996, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

The agreement between plaintiffs subrogor and defendant does not preclude toft claims by either the contracting tenant or the noncontracting owner arising from the security company’s negligent performance of its services.

Based upon defendant security company’s reasonable expectations and the non-contracting building owner’s detrimental reliance on its tenant’s agreement with the security company, the owner is within the intended ambit of contractual beneficiaries entitled to seek recovery in tort for breach of the agreement (see, Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 587; cf, Hagan v Comstat Sec., 214 AD2d 435).

We agree with the motion court’s determination that the criminal conduct was not, as a matter of law, an intervening cause of the fire and resulting insurance losses. A trier of fact could find that the arson was a foreseeable act, in view of the security guard’s conversation with the apparent arsonist and decision to leave his post just minutes before the fire broke out.

We have considered plaintiff-respondent’s contentions for affirmative relief and find them to be without merit. Concur— Milonas, J. P., Ellerin, Nardelli and Tom, JJ.