Gamarra v. Top Banana, LLC

Appellate Division of the Supreme Court of New York

Gamarra v. Top Banana, LLC

50 A.D.3d 425, 855 N.Y.S.2d 478

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 15, 2008

StatusPublished

Cited by2 cases

This text of 50 A.D.3d 425 (Gamarra v. Top Banana, LLC) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gamarra v. Top Banana, LLC, 50 A.D.3d 425, 855 N.Y.S.2d 478 (N.Y. Ct. App. 2008).

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Opinion

Order, Supreme Court, Bronx County (Mary Ann BriganttiHughes, J.), entered June 26, 2007, which, to the extent appealed from, denied defendant Circle Rubbish of New York’s cross motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of Circle Rubbish dismissing the complaint as against it.

Circle Rubbish, which contracted with defendant Hunt’s Point Terminal Market Cooperative Association to provide street cleaning services at the market, demonstrated that none of the situations in which a contractor of this type may be said to have assumed a duty of care, and thus to be potentially liable in tort to third persons, is present here (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]). There is no evidence that Circle Rubbish launched “a force or instrument of harm” (Moch Co. v Rensselaer Water Co., 247 NY 160, 168 [1928]), that plaintiff detrimentally relied on the continued performance of Circle Rubbish’s duties under its contract with Hunt’s Point, or that that contract was comprehensive and exclusive and therefore gave rise to a duty on Circle Rubbish’s part that displaced either owner’s normal duty to maintain the premises in a safe manner (see Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 589 [1994]). Concur—Lippman, EJ., Tom, Williams and Acosta, JJ.

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Order, Supreme Court, Bronx County (Mary Ann BriganttiHughes, J.), entered June 26, 2007, which, to the extent appealed from, denied defendant Circle Rubbish of New York’s cross motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of Circle Rubbish dismissing the complaint as against it.

Circle Rubbish, which contracted with defendant Hunt’s Point Terminal Market Cooperative Association to provide street cleaning services at the market, demonstrated that none of the situations in which a contractor of this type may be said to have assumed a duty of care, and thus to be potentially liable in tort to third persons, is present here (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]). There is no evidence that Circle Rubbish launched “a force or instrument of harm” (Moch Co. v Rensselaer Water Co., 247 NY 160, 168 [1928]), that plaintiff detrimentally relied on the continued performance of Circle Rubbish’s duties under its contract with Hunt’s Point, or that that contract was comprehensive and exclusive and therefore gave rise to a duty on Circle Rubbish’s part that displaced either owner’s normal duty to maintain the premises in a safe manner (see Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 589 [1994]). Concur—Lippman, EJ., Tom, Williams and Acosta, JJ.

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Bluebook (online)

50 A.D.3d 425, 855 N.Y.S.2d 478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gamarra-v-top-banana-llc-nyappdiv-2008.

Opinion

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