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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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THE STATUTORY CRITERIA FOR A MOTION TO CHANGE VENUE IN CPLR 510(3) WERE NOT MET; THE MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
THE NYC ADMINSTRATIVE CODE REQUIRES ABUTTING PROPERTY OWNERS TO REPAIR SIDEWALK FLAGS OVER 1/2 INCH; PLAINTIFF PRESENTED EVIDENCE THE FLAG WAS THREE INCHES; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
PLAINTIFF SOCIAL WORKER WAS MENACED BY A TENANT IN CITY HOUSING WIELDING A KNIFE AND SUED THE CITY; THE CITY WAS ACTING IN A GOVERNMENTAL CAPACITY; THERE WAS NO SPECIAL DUTY OWED TO PLAINTIFF BY THE CITY; THE ATTACK WAS NOT FORESEEABLE; SECURITY WAS ADEQUATE; THE COMPLAINT WAS PROPERLY DISMISSED (FIRST DEPT).
OHIO TRUSTEE’S REQUEST FOR PAYMENT PURSUANT TO A ROYALTY AGREEMENT WITH THE NEW YORK PLAINTIFF DID NOT CONFER JURISDICTION UPON NEW YORK, DESPITE A NEW YORK CHOICE OF LAW PROVISION (FIRST DEPT).
QUESTION OF FACT WHETHER EMERGENCY DEFENSE APPLIED TO A REAR-END COLLISION.

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