Practice point. Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party. However, a party that 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, where: (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. If any of the exceptions are pleaded in the complaint or the bill of particulars, a defendant contractor is required to demonstrate that those pleaded exceptions do not apply in order to establish its prima facie entitlement to judgment as a matter of law.
Application: The Supreme Court properly granted that branch of City-Wide's motion which was for summary judgment dismissing the cross-claims asserted against it. Viewed in the light most favorable to the restaurant defendants, as the nonmoving parties, the complaint in Action No. 1, the second amended complaint in Action No. 2, and the bills of particulars alleged the first of the three exceptions. In support to its motion, City-Wide established, prima facie, that neither the police plaintiffs nor the decedent were parties to any agreement between it and Legal Sea Foods, and that the repair work it performed four days prior to the incident neither launched an instrument of harm nor created or exacerbated the alleged dangerous condition at the restaurant.
Fezza vs. Legal Sea Foods, LLC, NY Slip Op 05382 (2d Dep't September 23, 2026)
