The Appellate Division, Second Department unanimously reversed the lower court’s decision which incorrectly denied summary judgment to GVK’s client, a janitorial contractor. Plaintiff, a hotel employee, alleged serious injuries as a result of a slip and fall on grease within a loading dock.
GVK argued that the janitorial contractor could not be found to owe a duty of care to Plaintiff pursuant to the seminal Court of Appeals case of Espinal v. Melville Snow Contrs., which sets forth the three exceptions by which a defendant may be held to owe a duty of care to a non-contracting party. As is relevant here, the janitorial contractor submitted testimony and evidence that it did not transport grease and was not responsible for cleaning grease spills within the loading dock. Thus, GVK argued that the janitorial contractor could not be found to have “launched a force of harm”. Plaintiff attempted to raise a triable issue of fact by pointing to testimony that the contractor occasionally undertook additional cleaning tasks within the loading dock when asked by the building manager. The lower court erroneously denied the janitorial contractor’s summary judgment motion finding that Plaintiff raised a triable issue of fact whether the janitorial contractor “launched a force of harm”.
On appeal, the Second Department reversed and pointed out that Plaintiff testified she did not know how the grease spot was created or who was responsible for cleaning the grease, and had never seen the contractor mopping the loading dock. Thus, any contention that the contractor created the condition would be purely speculative and conclusory and not sufficient to raise a triable issue of fact.