Susan Kuti, Plaintiff-Respondent, v Sera Security Services, Defendant-Appellant.
11149 303529/13
Appellate Division of the Supreme Court of New York, First Department
April 2, 2020
2020 NY Slip Op 02153
Manzanet-Daniels, J.P., Kapnick, Gesmer, Oing, JJ.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncоrrected and subject to revision before publication in the Official Reports.
Barry McTiernan & Wedinger, LLC, New York (Laurel A. Wedinger of counsel), for appellant.
Wingate, Russotti, Shapiro & Halperin, LLP, New York (Victor Goldblum of counsel), for respondent.
Order, Suprеme Court, Bronx County (Doris M. Gonzalez, J.), entered May 10, 2019, which, insofar as appealed from, denied defendant‘s motion for summary judgment dismissing the complaint and deferred plaintiff‘s cross motion for discovery sanctions, unanimously affirmed, withоut costs.
Plaintiff, a nurse, was injured when she was attacked by a patient at the healthcare facility where she worked. Defendant Sera Security Services (Sera) provided security for the facility pursuant to a contract. After plaintiff commenced a negligence action, Sera moved for summary judgment dismissing the complaint, arguing that it was not liable to plaintiff, either as
It is axiomatic that a finding of nеgligence requires a finding that defendant breached a duty it owes to plaintiff. “[T]he existence and scope of a duty is a question of law requiring courts to balance sometimes competing public policy considerations” (Espinal, 98 NY2d at 138). “Unlike foreseeability and causation, which are issues generally and more suitably entrusted to fact finder adjudication, the definition of the existence and scope of an alleged tortfeasor‘s duty is usually a legal, policy-laden declaration reserved for Judges to make prior to submitting anything to fact-finding or jury consideration” (Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 585 [1994]). A contractual duty, standing alone, generally does not give rise to third-party liability. However, a court mаy impose third-party liability where the alleged tortfeasor has entirely displaced the other contracting party‘s duty to maintain safe premises, or where “plaintiff detrimentally relies on the continued performanсe of the contracting party‘s duties” (Espinal, 98 NY2d at 140; see also Palka, 83 NY2d at 584).
Here, the motion court correctly determined that the contractual language and deposition testimony were sufficient to defeat Sera‘s motion for summary judgment to the extеnt that they raised questions as to whether Sera had a duty to plaintiff, either because she was a third-party beneficiary under the contract with plaintiff‘s employer, or because she had detrimentally relied on Sera‘s continued performance of its contractual duties.
The contract does not expressly exclude third-party beneficiaries. Its language raises a question of fact as to whether it “displace[d] and substitut[ed] [onto defendant]. . . a particular safety function designed to protect persons like this plaintiff” (Palka, 83 NY2d at 589; see also Espinal, 98 NY2d at 140).
The contract incorporates by reference the facility‘s solicitation for proposals and Sera‘s proposal. Reading these documents as one precludes us from finding that Sera is not solely responsible for the security of premises, and the property and persons on it. The solicitation states that the security vendor shall “provide security services and. . . uniformed security
While defendant argues that the contract was intended to require Sera to provide services only to protect against unauthorized entry intо the premises and damage to property, we agree with the motion court that the contractual language is ambiguous (see LDIR, LLC v DB Structured Prods., Inc., 172 AD3d 1, 4 [1st Dept 2019]). Accordingly, the court may consider extrinsic evidence of the contractual intent (Greenfield v Philles Records, 98 NY2d 562, 569 [2002]).
As the mоtion court noted, the testimony of the Sera security guard who responded to plaintiff‘s call for assistance indicated that he understood his obligation to include ensuring that the patient, who had already assaulted plаintiff by the time he arrived, “not. . . come back and. . . do something to them. . . . or. . . get into a fight with them,” and that he therefore approached the patient and “slowly talked to her going back to her door. . . . just to buy time until the police and ambulance comes. . . . My attendance is just to say whatever I need to say to that woman to just keep her calm.” He further testified that he and his fellow Sera security guards regularly responded to facility staff‘s calls for assistance with incidents, including “altercations” and “fighting.”
Given this testimony and the contractual language, the motion court properly denied summary judgment on the issue of whether defendant is liable to plaintiff as a third-party beneficiary of the contract.
Plaintiff testified that she called the security guard station three times to report that a patient was behaving in an aggressivе and threatening manner, and that the lobby security guard assured her that he was sending a guard to assist her. She further testified that approximately 5 to 10 minutes passed between her first call and the assault, that the assault lasted approximately 3 or 4 minutes, and that the security guard arrived after she had been assaulted. It is not clear when the police were called or who called them, but they arrived and arrested the patient after the security guаrd appeared. Given the testimony by plaintiff and the Sera security guard to the effect that Sera staff undertook to respond to plaintiff‘s call for help, and the discrepancy between the parties’ claims аbout the length of time it took for a Sera security guard to respond, plaintiff raised questions of fact as to whether Sera might be liable to her under a theory of detrimental reliance.
Moreover, while the motion cоurt declined to credit surveillance video offered by Sera in support of its claim that the security guard arrived “one minute” after plaintiff called for help, the court should not have considered the video at all for two reasons. First, as the motion court noted, it was offered with defendant‘s reply papers and plaintiff had no opportunity to respond to it. Second, it was not authenticated, and thus did not constitute evidence in admissible form, as required on a motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
The motion court also correctly denied summary judgment as to whether or not the assault on plaintiff was foreseeable. A criminal act may result in liability for the party with a duty to
Here, the contract itself appears to contemplate the likelihood of incidents like the one at issue, since the contract requires that Sera security guards have the ability to “handle emotionally disturbed individuals,” “enforce restraining procedures,” and be trained in “arrest procedures.” In addition, the Sera security guard who responded to plaintiff‘s call for help testified that he and his colleagues had previously received calls from facility employees on the floor where plaintiff worked seeking assistance with patients who had becomе “angry.” During those incidents, he testified that they would “have to take the patient down and try to calm him the best — - as much as we can do.” He also testified to receiving as many as five calls for assistance in one day from various locations on the premises because “a lot of stuff happens,” including “altercations” and “fighting.” Plaintiff testified that the patient who assaulted her had a history of aggressive behavior and resistance to authority, and that staff had sent the patient “to psych several times.”
Under these circumstances, the motion court properly found that Sera had failed to meet its burden, as the proponent of a summary judgment motion, to demonstrate an absence of prior assaults or similar incidents on the premises (see Sanchez v State of New York, 99 NY2d 247, 254 [2002]). Even if Sera had made a prima facie showing, plaintiff has raised a question of fact sufficient to overcome Sera‘s summary judgment motion on the issue of foreseeability.
Finally, we find that the motion court, in the exercise of its broad discretion in such matters (
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 2, 2020
CLERK