Brooks v. Maintenance Service Resources, Inc.

In an action to recover damages for personal injuries, the third-party defendant appeals, as limited by its brief, from so much of an interlocutory judgment of the Supreme Court, Kings County (Bunyan, J.), dated June 28, 2005, as, upon a jury verdict finding it 40% at fault in the happening of the accident and the defendant third-party plaintiff 60% at fault in the happening of the accident, directed that the defendant third-party plaintiff may collect 40% of the amount to be paid to the plaintiff from the third-party defendant after a retrial on damages, and the defendant third-party plaintiff cross-appeals, as limited by its brief, from so much of the same interlocutory judgment as granted the plaintiff judgment against it for 100% of any damages verdict after a retrial on damages.

Ordered that the interlocutory judgment is reversed, on the law, with one bill of costs payable to the defendant third-party plaintiff and the third-party defendant, the complaint and the third-party complaint are dismissed, and an order of the same court dated December 23, 2004, and an amended order of the same court dated January 24, 2005, disposing of posttrial motions (see Brooks v Maintenance Serv. Resources, Inc., 44 AD3d 886 [2007] [decided herewith]), are vacated.

On the evening of March 3, 1995 the plaintiff, who was at work, was injured when she stepped into an opening in a “raised floor” in her office. The nonparty building owner leased the premises to the plaintiffs employer, nonparty HIP of Greater New York (hereinafter HIP). The evidence at trial showed that the opening was made by workers who were employed by nonparty Universal Builders & Developers Corp. (hereinafter Universal). The evidence also showed that workers who were employed by the third-party defendant, Allied Exterminating (hereinafter Allied), who were in the plaintiffs office that evening to perform a “mouse clean-out,” and who needed access to the area underneath the raised floor, had asked Universal’s workers to make various openings in the raised floor.

Allied had been hired by the defendant third-party plaintiff, Maintenance Service Resources, Inc. (hereinafter Maintenance), which, pursuant to a contract with Hlfl provided maintenance and pest control services for the building’s tenants, such as the plaintiffs employer. Universal had been hired by the plaintiffs employer to assist Allied. The plaintiff commenced the instant action against Maintenance, seeking to recover damages for her personal injuries. Maintenance, in turn, commenced a third-party action against Allied, seeking contribution or indemnification.

After a trial, the jury found, inter alia, that Allied and Maintenance were both negligent. However, viewing the evidence in the light most favorable to the plaintiff, we find that there was simply no valid line of reasoning or permissible inferences from which the jury could conclude that Maintenance was negligent (see Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]).

Contrary to the plaintiffs contention, there was no evidence from which the jury could rationally have concluded that Maintenance was actively negligent by failing to keep the plaintiffs office in a safe condition, as Maintenance did not own or occupy the office (cf. Slatsky v Great Neck Plumbing Supply, Inc., 29 AD3d 776, 777 [2006]), or have a maintenance obligation that was so “comprehensive and exclusive” that it could be considered to have assumed a duty to keep the office safe (Espinal v Melville Snow Contrs., 98 NY2d 136, 141 [2002]). Maintenance did not direct, supervise, or control the work of Allied or Universal, and was not present when the floor hatches were created and left unattended. Absent negligence on the part of Maintenance, the plaintiff cannot recover damages as a noncontracting party (see Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 587 [1994]; Crosby v Ogden Servs. Corp., 236 AD2d 220 [1997]).

Accordingly, the complaint should have been dismissed (see Cohen v Hallmark Cards, 45 NY2d at 496). In light of this conclusion, the third-party complaint also should have been dismissed, as the plaintiff asserted no direct action against Allied.

In light of our determination, the remaining contentions of Allied and Maintenance have been rendered academic. Schmidt, J.P., Mastro and Dillon, JJ., concur.