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Why not move for summary judgement and end this litigation 
February 24, 2023
Why not move for summary judgement and end this litigation
          Can’t tell you how often I’ve been asked that question by insurance company claims reps, brokers and clients.  Summary judgment is the hopeful outcome of a motion for summary judgment, the intent of which is to end the litigation, one way or the other.  Generally, and sufficient for our purposes, summary judgment can be used when there are no issues of fact to be determined and one party has established as a matter of law that it is entitled to judgement.  The “summary” part really refers to procedure whereby the relief is requested without there being a trial.  The request is made to the Judge and the argument is that there are no questions of fact, no issues, and the matter should be resolved as a matter of law. 
          It’s up to the Judge to determine if there are issues of fact and whether a party has established its right to summary judgment.  Here’s the rub, you only get one shot at the bull’s eye.  You blow the motion you are in for a trial unless some very special issues, fact or law or both, become apparent before a trial. 
          Kirschenbaum Contracts™ are designed and intended to achieve the best results possible for contractual provisions when defending a claim.  Let’s analogize by saying you’ve got a silver bullet.  You still need to know how to load it and shoot. 
          The plaintiff in the below case was severely injured, burned over 70% of his body.  He resided in a facility for disabled people.  Building suffered a fire and neither the operator of the facility nor the guard company responded to the fire alarm, leaving the plaintiff to suffer for a long time.  The operator and the guard company moved for summary judgment.  The guard company’s motion to dismiss a Warranty Cause of Action was granted because as a matter of law the guard company had no liability for warranty.  But that didn’t get the guard company out of the case because the main cause of action, breach of its Service Agreement, was not dismissed.
          The damages in this case are likely significant, which makes the financial exposure significant.  Not only will the operator and guard company be in for the long haul now but they risk a sizable jury award if they risk a trial. 
          My guess, this case gets settled.  We probably won’t ever know.
          Most guard companies have resisted my advice regarding using proper contracts.  K&K has Standard Form Guard Agreements that have been available for almost as long as the security and fire alarm contracts.
          The below decision does not mention contract provisions other than to point out that the guard company agreed to “enforce SUS policies and procedures, which included the fire and evacuation policy”.  There is no mention of a single provision that would insulate the guard company from liability.  There is also no mention of any indemnity provision, which is odd since it’s more than likely that someone is indemnifying someone else.  There’s also no mention of arbitration, so either it’s not in the guard contract or that option wasn’t selected for dispute resolution. 
          If you are not using Kirschenbaum Contracts™ or a contract you are damn sure is just as good, I strongly suggest you think about the case below for a long time.
SERVICES FOR THE UNDERSERVED, INC., ET AL., Third-Party plf-res-app, v. FJC SECURITY SERVICES, INC., ThirdParty def-app-res — Rosenbaum & Taylor, P.C., White Plains (Scott Taylor of counsel), for appellant-respondent — Rutherford & Christie LLP, New York (Michael Becker of counsel), for respondents-appellants — Nesenoff & Miltenberg LLP, New York (Janine L. Peress of counsel), for respondent — Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered on or about September 28, 2021, which denied the motion of defendants Services for the Underserved, Inc., Macombs Road Housing Development Fund Corporation, Macombs Road Housing, L.P. (collectively, the SUS defendants) for summary judgment dismissing the complaint, and denied third-party defendant FJC Security System’s motion for summary judgment dismissing the third-party complaint, unanimously modified, on the law, to grant FCJ Security’s motion to the extent of dismissing the third-party claim for breach of warranty, and otherwise affirmed, without costs.
          In this personal injury action, plaintiff alleges that he sustained second- and third-degree burns over 70% of his body while he was a resident in a facility for the disabled, which was owned and operated by the SUS defendants. According to the complaint, a fire broke out in plaintiff’s apartment and triggered a fire alarm, but employees of the facility failed to respond to the alarm, check on plaintiff, or call 911, resulting in a 12-hour delay in discovering plaintiff and treating his injuries. The SUS defendants asserted a third-party action against FJC Security, with whom it had contracted under a service agreement to provide security services for plaintiff’s building, asserting claims, among others, for breach of contract and breach of warranty. The SUS defendants failed to establish their prima facie entitlement to summary judgment. The SUS defendants did not have an ordinary landlord-tenant relationship with the residents of their building, but rather, owed the residents a heightened duty of care given the nature of their ailments and the level of restriction placed on the residencies. Accordingly, the record presents triable issues of fact as to whether the SUS defendants properly executed their duty to safeguard patients and residents (see N.X. v. Cabrini Med. Ctr., 97 NY2d 247, 252 [2002]).
          FJC Security was not entitled to summary judgment dismissing the third-party complaint. FJC Security’s interpretation of its service agreement to exclude compliance with the SUS defendants’ fire protocols would render meaningless several provisions listed in paragraph 12 of the service agreement – for example, the provision stating that FJC Security employees are required to enforce SUS policies and procedures, which included the fire and evacuation policy (see LDIR, LLC v. DB Structed Prods., Inc., 172 AD3d 1, 5 [1st Dept 2019]).
          The record therefore presents material issues of fact as to whether FJC Security discharged its duties under the service agreement. However, the motion court should have granted FJC Security’s request to dismiss the breach of warranty claim because a party outside a manufacturing, selling, or distributive chain cannot be held liable for breach of warranty (see Laurin Mar. AB v. Imperial Chem. Indus., 301 AD2d 367, 367-368 [1st Dept 2003], lv denied 100 NY2d 501 [2003]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. [emphasis added]

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301