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Plaintiff Was Deemed Third Party Beneficiary of Contract Between Next-Door Neighbor and Chimney Repair Company— Smoke Was Entering Plaintiff’s Home

Smoke from defendant Moore’s fireplace was entering a neighbor’s (Trager’s) home.  Trager sued Moore and the defendant company (B & P) hired by Moore to fix their fireplace.  The motion court dismissed the cause of action against B & P.  The First Department reinstated the cause of action against B & P finding that Trager may have been a third-party beneficiary of the contract between Moore and B & P:

The complaint should not have been dismissed as against B & P because a question of fact exists as to whether B & P owed Linda Trager … a duty as a third-party beneficiary to B & P’s contract with the Moore defendants … . Castlepoint Ins Co v Moore, 2013 NY Slip Op 02352, 99747, 110915/09, 1st Dept, 4-9-13

 

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