        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

230
CA 15-01344
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.


MICHAEL C. KERWIN, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

JOSEPH FUSCO, ET AL., DEFENDANTS,
AND BH DECKER, INC., DEFENDANT-APPELLANT.
---------------------------------------------
JOSEPH FUSCO, ET AL., THIRD-PARTY PLAINTIFFS,

                    V

SUNSTREAM CORPORATION, THIRD-PARTY DEFENDANT.


COSTELLO, COONEY & FEARON, PLLC, CAMILLUS (TERANCE WALSH OF COUNSEL),
FOR DEFENDANT-APPELLANT.

BOUSQUET HOLSTEIN PLLC, SYRACUSE (HARRISON V. WILLIAMS, JR., OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County (James
P. Murphy, J.), entered October 27, 2014. The order, inter alia,
denied that part of the cross motion of defendant BH Decker, Inc., for
summary judgment dismissing the complaint against it.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained when he fell through a stairway in the house
where he resided as a student-tenant in Delhi, New York. Defendant-
third-party plaintiff Joseph Fusco (Fusco), the owner of the rental
property, entered into a written Property Management Agreement
(Agreement) with defendant-third-party plaintiff BH Decker, Inc.
(Decker), pursuant to which Decker was to manage the property. Fusco
resided in Staten Island, New York, and visited the premises once a
year in August when the students returned to begin the fall semester.
Under the terms of the Agreement, Decker, which had its place of
business in Delhi, New York, was to “manage and operate” the premises
“with due diligence and [was] authorized and responsible on behalf of
[Fusco] for acts which are reasonably necessary for property
management,” including but not limited to inspecting for damage and
making contracts for utilities and maintenance as Decker “deemed
advisable.” The Agreement designated Decker as the entity that would
“field all calls & communications from tenants” and required only that
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                                                         CA 15-01344

Decker “advise” Fusco of any “non-emergency” corrections or repairs
that Decker deemed necessary.

     As a result of prior water damage to the house, the premises were
undergoing mold remediation work by third-party defendant Sunstream
Corporation (Sunstream) at the time of plaintiff’s accident. The
written “Proposal” from Sunstream for that work was directed and
addressed to Decker. On the day before plaintiff’s accident,
plaintiff and another tenant of the house noticed a loose stair tread
in the stairway. The other tenant called Benjamin Decker, the
president of Decker, who came to the building and made repairs to the
tread. While Benjamin Decker was at the property, he noticed that
Sunstream had removed a closet and structural framing under the
staircase while performing mold remediation. Benjamin Decker
undertook no further repair or remedial action.

     Insofar as relevant to this appeal, Decker cross-moved for
summary judgment dismissing the complaint against it, and Supreme
Court denied the cross motion. We affirm, although our reasoning
differs from that of the court with respect to the issue whether
Decker owed a duty to plaintiff to maintain the premises in a
reasonably safe condition.

     We reject Decker’s contention that it did not owe a duty of care
to plaintiff because the Agreement with Fusco did not give rise to
tort liability in favor of a third party. “Because a finding of
negligence must be based on the breach of a duty, a threshold question
in tort cases is whether the alleged tortfeasor owed a duty of care to
the injured party” (Espinal v Melville Snow Contrs., 98 NY2d 136,
138). It is well settled that “ ‘a contractual obligation, standing
alone, will impose a duty only in favor of the promisee and intended
third-party beneficiaries’ ” (id. at 140), and “will generally not
give rise to tort liability in favor of a third party,” i.e., a person
who is not a party to the contract (id. at 138; see Haberl v Verizon
N.Y., Inc., 113 AD3d 1129, 1130). There are, however, “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,” i.e., where the
contracting party fails to exercise reasonable care in the performance
of his or her duties and thereby launches a force or instrument of
harm, where the plaintiff detrimentally relies on the continued
performance of the contracting party’s duties, and “where the
contracting party has entirely displaced the other party’s duty to
maintain the premises safely” (Espinal, 98 NY2d at 140; see Anderson v
Jefferson-Utica Group, Inc., 26 AD3d 760, 760-761).

     In analyzing the three exceptions, we agree with Decker that it
met its burden on its cross motion of establishing as a matter of law
that the repairs made to the stair tread by Benjamin Decker did not
launch a force or instrument of harm by exacerbating the dangerous
condition of the stairway or making it less safe (see Stiver v Good &
Fair Carting & Moving, Inc., 32 AD3d 1209, 1210-1211, affd 9 NY3d 253;
Sniatecki v Violet Realty, Inc., 98 AD3d 1316, 1320). We reject
Decker’s contention, however, that the detrimental reliance exception
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                                                         CA 15-01344

is inapplicable as a matter of law. We conclude on this record that
there are issues of fact whether plaintiff detrimentally relied on
Decker’s inspection of the stairway and performance of repairs to the
stairway in accordance with Decker’s duties under the Agreement (see
All Am. Moving & Stor., Inc. v Andrews, 96 AD3d 674, 675). Contrary
to Decker’s further contention, we conclude as a matter of law that
the Agreement here is the type of comprehensive and exclusive
management agreement that entirely displaced the owner’s duty to
inspect, repair, and safely maintain the premises for the benefit of
the student-tenants (see Karac v City of Elmira, 14 AD3d 842, 844;
Tushaj v Elm Mgt. Assoc., 293 AD2d 44, 48-49; see generally Palka v
Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 588-590). Thus, Decker
owed a duty of care to plaintiff under that exception to the general
rule (see Espinal, 98 NY2d at 140). We reach no conclusion on the
issue whether Decker breached that duty.




Entered:   April 29, 2016                      Frances E. Cafarell
                                               Clerk of the Court
