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AUTO REPAIR SHOP OWED NO DUTY TO PLAINTIFF WHO HAD BORROWED THE CAR WHICH HAD BEEN REPAIRED FOR THE OWNER, SINCE NO ESPINAL FACTORS WERE ALLEGED DEFENDANT REPAIR SHOP DID NOT NEED TO NEGATE THOSE FACOTRS IN ITS MOTION FOR SUMMARY JUDGMENT.

The Second Department, reversing Supreme Court, determined defendant auto repair shop (Auto Excellence) did not owe a duty to plaintiff who was injured driving a borrowed car. Plaintiff, who alleged the car was negligently repaired (causing injury), did not have a contractual relationship with the repair shop and did not allege any Espinal factors which could give rise to tort liability based on a contract. Because no Espinal factors were alleged there was no need for defendant to negate those factors in its motion papers:

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A contractual obligation, standing alone, generally will not give rise to tort liability in favor of a third party … , the Court of Appeals recognized that exceptions to this rule apply (1) where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties, and (3) where the contracting party has entirely displaced another party’s duty, in Espinal, to maintain the premises safely.

Here, Auto Excellence made a prima facie showing of its entitlement to judgment as a matter of law by offering proof that the plaintiff was not a party to the repair contract and, thus, Auto Excellence owed her no duty of care … . Contrary to the plaintiff’s contention, since the pleadings did not allege facts which would establish the applicability of any of the Espinal exceptions, Auto Excellence was not required to affirmatively demonstrate that these exceptions did not apply in order to establish its prima facie entitlement to judgment as a matter of law … . Koslosky v Malmut, 2017 NY Slip Op 02977, 2nd Dept 4-19-17

NEGLIGENCE (AUTO REPAIR SHOP OWED NO DUTY TO PLAINTIFF WHO HAD BORROWED THE CAR WHICH HAD BEEN REPAIRED BY THE OWNER, SINCE NO ESPINAL FACTORS WERE ALLEGED DEFENDANT REPAIR SHOP DID NOT NEED TO NEGATE THOSE FACTORS IN ITS MOTION FOR SUMMARY JUDGMENT)/CONTRACT LAW (TORT LIABILITY TO THIRD PARTY, (AUTO REPAIR SHOP OWED NO DUTY TO PLAINTIFF WHO HAD BORROWED THE CAR WHICH HAD BEEN REPAIRED BY THE OWNER, SINCE NO ESPINAL FACTORS WERE ALLEGED DEFENDANT REPAIR SHOP DID NOT NEED TO NEGATE THOSE FACTORS IN ITS MOTION FOR SUMMARY JUDGMENT)/CIVIL PROCEDURE (ESPINAL FACTORS, (AUTO REPAIR SHOP OWED NO DUTY TO PLAINTIFF WHO HAD BORROWED THE CAR WHICH HAD BEEN REPAIRED BY THE OWNER, SINCE NO ESPINAL FACTORS WERE ALLEGED DEFENDANT REPAIR SHOP DID NOT NEED TO NEGATE THOSE FACTORS IN ITS MOTION FOR SUMMARY JUDGMENT)

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THE MERE FACT THAT PLAINTIFF FELL FROM AN A-FRAME LADDER IS NOT ENOUGH TO WARRANT SUMMARY JUDGMENT IN FAVOR OF THE PLAINTIFF ON A LABOR LAW 240(1) CAUSE OF ACTION, PLAINTIFF’S MOTION PROPERLY DENIED BUT DEFENDANT’S MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
SUPREME COURT SHOULD NOT HAVE DISMISSED THE DECLARATORY JUDGMENT PORTION OF THIS HYBRID ARTICLE 78/SUMMARY JUDGMENT ACTION BECAUSE NO MOTION FOR SUMMARY DETERMINATION OF THAT PORTION OF THE PROCEEDING HAD BEEN MADE.
COLLEGE DID NOT OWE A DUTY OF CARE TO TWO STUDENTS WHO DIED IN A FIRE IN THE OFF-CAMPUS HOUSE THEY WERE RENTING (SECOND DEPT).
WAIVER OF APPEAL INVALID; ALREADY COMPLETED SENTENCE REDUCED BECAUSE OF THE IMMIGRATION CONSEQUENCES OF THE ORIGINAL SENTENCE; MATTER CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (SECOND DEPT).
PLAINTIFF BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL 1304 AND DID NOT SUBMIT ADMISSIBLE PROOF OF STANDING PURSUANT TO A MERGER, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
DESPITE PLAINTIFF’S SIGNING A CONSENT FORM, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LACK OF INFORMED CONSENT CAUSE OF ACTION PROPERLY DENIED, PLAINTIFF ALLEGED THE WRONG TOOTH WAS EXTRACTED (SECOND DEPT).
CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT).

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