THE CONTRACT BETWEEN DEFENDANT AIRWAY CLEANERS AND DEFENDANT AMERICAN AIRLINES IN THIS AIRPORT SLIP AND FALL CASE DID NOT ENTIRELY DISPLACE AMERICAN AIRLINES’ DUTY TO KEEP THE BATHROOM SAFE; THEREFORE THE CONTRACT COULD NOT SERVE AS THE BASIS FOR AIRWAY CLEANERS’ LIABILTY TO PLAINTIFF UNDER ESPINAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant Airway Cleaners’ contract with American Airlines did not entirely displace defendant American Airlines’ duty to maintain the bathroom where plaintiff slipped and fell. Therefore the contract between Airway Cleaners and American Airlines could not serve as the basis for Airway Cleaners’ liability to third parties (plaintiff) under Espinal:

“Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party” … . However, insofar as relevant here, an exception to this general rule applies where “the contracting party has entirely displaced the other party’s duty to maintain the premises safely” (Espinal v Melville Snow Contrs., 98 NY2d at 140).

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against Airway Cleaners, LLC, by demonstrating that a limited janitorial service agreement between Airway Cleaners, LLC, and American Airlines was not a comprehensive and exclusive agreement which entirely displaced American Airlines’ duty to maintain the premises in a reasonably safe condition … . DaCruz v Airway Cleaners, LLC, 2022 NY Slip Op 06687, Second Dept 11-23-22

Practice Point: Here there was a contract between defendant Airway Cleaners and defendant American Airlines with respect to cleaning the premises at Kennedy Airport. The contract was not comprehensive enough to entirely displace American Airlines’ duty to keep the bathroom on the premises, where plaintiff slipped and fell, safe. Therefore, the contractor, Airway Cleaners, under the Espinal criteria, could not be sued by plaintiff.