Rebell v. Emigrant Savings Bank

258 A.D.2d 491, 684 N.Y.S.2d 216

Opinion

—Order, Supreme Court, New York County (Stuart Cohen, J.), entered January 27, 1998, which denied defendants’ motion and cross motion for summary judgment, unanimously modified, on the law, to grant the motion of defendant Harvard Maintenance to the extent of dismissing the complaint as against it, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of defendant Harvard Maintenance dismissing the complaint as against it.

Summary judgment was properly denied as to defendant Emigrant Savings Bank since issues of fact exist as to whether Emigrant created or increased the hazard that is alleged to have caused plaintiff’s fall and injury (see, Quintana v Mei, 254 AD2d 96; Jiuz v City of New York, 244 AD2d 298). However, summary judgment should have been granted to Harvard Maintenance whose contractual obligations to Emigrant did not give rise to a special duty of care to plaintiff (Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579). We do not dismiss defendant Emigrant’s claims against defendant Harvard Maintenance. Concur — Rosenberger, J. P., Ellerin, Tom and Saxe, JJ.