Supreme Court, Appellate Division, Second Department, New York.
Maria M. PAZ, et al., Plaintiffs,v.PENSON/IMPROVED DWELLINGS COMPANY, Defendant Third-Party Plaintiff-Respondent;Epic Security Limited, Third-Party Defendant-Appellant.
April 16, 1990.
Tenant brought suit against landlord after tenant was attacked by intruder. Landlord sought contribution or indemnity from security firm, which had been hired to provide unarmed security guard for premises. The Supreme Court, Kings County, Lodato, J., denied security firm's motion for summary judgment. Security firm appealed. The Supreme Court, Appellate Division, held that genuine issue of material fact as to nature and terms of security firm's obligations to landlord precluded summary judgment on issue of whether security firm had any liability to landlord on account of any damages landlord might be compelled to pay tenant.
Judgment 181(15.1)228k181(15.1) Most Cited Cases (Formerly 228k181(15))
Genuine issue of fact as to nature and terms of security firm's obligations to provide security for apartment complex precluded summary judgment on landlord's claim for contribution or indemnification in suit brought by tenant who was attacked by intruder; security firm had alleged that it had no opportunity or duty to prevent harm since it was only to provide one unarmed security guard for landlord's complex of five buildings. McKinney's CPLR 1007. *286 Kirschenbaum & Kirschenbaum, P.C., Garden City (Kenneth Kirschenbaum and Burton Aronson, of counsel), for third-party defendant- appellant.
Harold M. Foster, New York City (Norman E. Frowley, of counsel), for defendant third-party plaintiff-respondent.
Before KUNZEMAN, J.P., and KOOPER, SULLIVAN and HARWOOD, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, etc., the third- party defendant appeals from an order of the Supreme Court, Kings County (Lodato, J.), dated August 30, 1988, which denied its motion for summary judgment dismissing the third-party complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff Maria M. Paz, a tenant in an apartment complex owned by defendant, was attacked by an intruder while she was in a portion of the premises and seeks to *287 recover damages for injuries thereby sustained. The defendant impleaded EPIC Security Limited (hereinafter EPIC), alleging the existence and breach of an oral contract to provide security services for the premises. Asserting that its obligation was only to provide one unarmed security guard for the defendant's entire complex of five buildings, EPIC moved for summary judgment on the theory that it had no opportunity or duty to prevent the harm which caused Mrs. Paz's injuries (see, Patricia B. v. Brown, 149 A.D.2d 450, 539 N.Y.S.2d 791), and therefore it is not liable to the defendant either for contribution or indemnification (cf., CPLR 1007). However, inasmuch as the present record reveals the existence of questions of fact, inter alia, as to the nature and terms of EPIC's obligations to the defendant, we cannot say, as a matter of law, that EPIC has no liability to the defendant on account of any damages the defendant may be compelled to pay to the plaintiff (see, Miller v. State of New York, 62 N.Y.2d 506, 478 N.Y.S.2d 829, 467 N.E.2d 493; Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606, 407 N.E.2d 451; see also, Ledda v. Minkin, 149 A.D.2d 471, 539 N.Y.S.2d 966).
554 N.Y.S.2d 286, 160 A.D.2d 854
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