New York Office Obtains Affirmance of Dismissal of Plaintiff’s Consolidated Slip-and-Fall Actions on Appeal

New York, N.Y. (December 11, 2024) - In a recent appeal, Rivera v. Sodexo, Inc., 2024 NY Slip Op 06071 (2d Dep’t 2024), the New York office successfully obtained an affirmance of the summary judgment dismissal of the plaintiff’s consolidated slip-and-fall actions for the Firm’s management agency client. Associate Dean Pillarella, a member of the Appellate Practice, argued the appeal. Partner Erin O’Leary, a member of the General Liability and Professional Liability Practices, and her team drafted the winning appellate briefs and underlying summary judgment motion. 

The plaintiff alleged to have slipped and fallen on property managed by the client on two separate occasions. The client had entered into a management agreement with the landowner to train, manage, and supervise certain of the landowner’s employees, who were responsible for performing engineering and housekeeping services. 

The Supreme Court, Kings County, awarded the client summary judgment, finding the client was not an intended beneficiary of the management agreement, as argued by the plaintiff, and that none of the exceptions set forth in Espinal v. Melville Snow Contrs., 98 N.Y.2d 136 (2002), applied. (Espinal holds that “a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party,” unless “(1) the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm, (2) the plaintiff detrimentally relies on the continued performance of the contracting party’s duties, or (3) the contracting party has entirely displaced the other party’s duty to maintain the premises safely.” Id. at 140.)

On appeal, the Appellate Division, Second Department, agreed and affirmed the award of summary judgment. The panel agreed with Dean’s argument that the third-party beneficiary doctrine could not apply, as the client “agreed only to manage certain employees of [the landowner], and any benefit the plaintiff received was incidental to that agreement.” Regarding Espinal, the panel further agreed that, in both instances, the client did not “launch a force or instrument of harm” or “entirely displace” the landowner’s duty to maintain safe premises. (The panel also found that Espinal’s detrimental-reliance exception was not adequately pleaded.)

Rivera amounts to a significant victory for the client, as the plaintiff alleged numerous injuries, including a left knee arthroscopy, left knee replacement, left shoulder arthroscopy, and two fusion surgeries.