Paradiso v. Apex Investigators & Security Co.

— Order, Supreme Court, Bronx County (Silbowitz, J.), entered on January 30, 1981, which denied defendant-appellant Apex’ motion to dismiss the complaint for failure to state a cause of action or, in the alternative, for summary judgment, reversed, on the law, and the motion for summary judgment granted, without costs. Plaintiff and another employee were shot during a Pathmark supermarket robbery occurring several minutes after closing time. Defendant Apex furnished security guards and services for the market. The uniformed guard had received permission from the manager to go to the bathroom just before the robbery occurred and did not reappear until after it was concluded. Plaintiff alleges, inter alia, that he had failed to lock the door properly before he left and that his presence might have deterred the robbers. The plaintiff testified that an armed masked man burst through the door of the “counting room”, where plaintiff was going over the day’s receipts and demanded the key. When plaintiff said, “I don’t know what key”, the nervous robber said “Don’t fool around, I want the key”, put the gun to plaintiff’s arm and “it just went off”. The agreement between the parties, as evidenced by the letter agreement nominally covering three other stores, the job descriptions and rules and regulations of defendant and the pretrial testimony of Apex’ president, do not reveal any provision specifically creating an obligation to plaintiff. Plaintiff failed to submit any evidence to the contrary. His claim that Apex’ services were furnished under “some subsequent agreement, written or oral”, is speculative and insufficient to defeat summary judgment. Despite his claims, plaintiff was not a third-party beneficiary of Pathmarks’s contract with Apex and was owed no contractual duty of protection against harm. Nor do we find on this record any factual question concerning the assumption of a duty on the part of Apex’ unarmed guards to prevent armed robberies. The record reveals no actionable negligence on the part of Apex which precipitated the injury to plaintiff. This wanton injury was not proximately related to the acts or omissions of defendant or a foreseeable consequence thereof. Bernal v Pinkerton’s, Inc. (52 AD2d 760, affd 41 NY2d 938), is applicable. There the court stated, (pp 760-761), “[b]efore an injured party may recover as a third-party beneficiary for failure to perform a duty imposed by contract, it must clearly appear from the provisions of the contract that the parties thereto intended to confer a direct benefit on the alleged third-party beneficiary to protect him from physical injury * * * It cannot be said as a matter of law that it was the intention of the parties under this contract to provide for the protection of plaintiff * * * Further, it cannot be said that the absence of the guard (who, incidentally, was not required to be armed) from his station was the proximate cause of the shooting * * * Nor was the incident foreseeable even were we to assume that there was an issue of affirmative negligence in this case”. Concur — Sandler, J. P., Sullivan, Ross and Carro, JJ.