Giovanna Sporty et al., Appellants, v. Honeywell, Inc., Respondent. (And a
Third-Party Action.)

412

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

274 A.D.2d 321; 710 N.Y.S.2d 591; 2000 N.Y. App. Div. LEXIS 7748

July 13, 2000, Decided
July 13, 2000, Entered





CASE SUMMARY:


PROCEDURAL POSTURE: Plaintiff appealed from an order of the Supreme Court,
Bronx County (New York), which granted defendant's motion for summary judgment
dismissing plaintiff's negligence complaint.

OVERVIEW: Plaintiff, while working after hours, was attacked by unknown
assailants . Plaintiff brought a negligence action against defendant burglar
system, who had a service agreement with third-party defendant employer. Plaintiff's
wife, alarmed when she could not contact plaintiff, called defendant and
expressed her deepening concern. She was told that defendant would send someone to
investigate, but it did not. Subsequently, her brother found plaintiff
unconscious. The motions court dismissed plaintiffs' complaint, holding that
defendant's procedures did not create any special duty. The appellate court reversed
and reinstated plaintiff's complaint, holding that when defendant's employee
advised plaintiff's wife that it would send someone, defendant assumed a duty
to follow through on its promise. When defendant did not, this breach of duty
provided the basis for liability. Whether defendant's breach of that assumed
duty proximately caused injuries or whether such injuries were foreseeable was a
question for the jury to resolve.

OUTCOME: Dismissal reversed and complaint alleging negligence reinstated
because when defendant's employee advised that it would send someone to check on
plaintiff, defendant assumed a duty to follow through on its promise. Whether
defendant's breach of that assumed duty proximately caused injuries or whether
such injuries were foreseeable was a question for the jury.

CORE TERMS: alarm, duty, activated, telephone, attacked, phone


COUNSEL: [***1] For Plaintiffs-Appellants: John W. Dougherty.

For Defendant-Respondent: David J. Andrews.

JUDGES: Concur--Williams, J. P., Wallach, Saxe and Buckley, JJ.

OPINION: [*321] [**592] Order, Supreme Court, Bronx County (Howard
Silver, J.), entered [*322] September 21, 1998, which granted defendant's motion
for summary judgment dismissing the complaint, unanimously reversed, on the
law, without costs, defendant's motion denied and the complaint reinstated.
Plaintiff Daniel Sporty was employed by third-party defendant Wexler and
Sporty, a hardware business in Manhattan, until he was attacked, struck on the
head and left unconscious by unknown assailants while working at the business
after hours. As a result of the attack, Mr. Sporty suffered severe head injuries
including skull fractures. Early in the evening of the attack, Mr. Sporty
had telephoned his wife to advise her that he would be working late and that,
since he would be working on upper floors where there were no telephones, he
would call her periodically. During the period relevant to this case, Honeywell
had a service agreement with Wexler and Sporty by which Honeywell agreed to
maintain a burglar system which was [***2] designed to send an alarm to the
Honeywell monitoring station in the event of a break-in after the alarm had been
activated. Since the alarm was not activated on the night Mr. Sporty was
attacked, no signals were sent or could have been sent. At 8:30 P.M., an
unidentified person from defendant Honeywell called Mrs. Sporty, informed her that the
alarm had not been set and told her that there was no answer at the store's
telephone. She advised the caller that her husband was working late; she was
asked to have him call Honeywell when she talked to him. Mrs. Sporty then tried
repeatedly to reach him by phone. At 10:00 P.M., she called Honeywell and
expressed her deepening concern that her husband did not answer the phone and had
not called her. She was told that Honeywell would send someone to the store
to investigate. Mrs. Sporty later had her brother visit the store at 11:00
P.M. when Mr. Sporty was found. The IAS Court dismissed plaintiffs' complaint on
Honeywell's motion, holding that Honeywell's procedures did not create a
special duty because there was no proof that Honeywell had ever sent an employee
to the premises absent a specific request when the alarm had not been [***3]
set as scheduled and, further, that the promise given at 10:00 P.M. was
"gratuitous" and did not create a duty to act.
The IAS Court decision was correct insofar as it absolved defendant from any
liability based upon the failure to send an employee as a result of the 8:30
P.M. telephone conversation with Mrs. Sporty since there is no evidence that
Honeywell had ever previously dispatched an employee when an alarm was not set.
Mrs. Sporty informed Honeywell that her husband [*323] was at the store and
it was reasonable to conclude that the alarm had not been set because he was
there working with others. Indeed, it was not until some time later that Mrs.
Sporty herself became concerned. When, however, Honeywell's employee advised
her that it would actually send someone to check, Honeywell assumed a duty to
actually follow through on its promise. It did not and this breach of duty
can provide the basis for liability.
While defendant attempts to characterize any potential liability as a result
of [**593] nonfeasance instead of misfeasance, it is forced to rely upon
dated authority whose continued viability has been fatally undermined by Court of
Appeals' decisions which [***4] give critical weight to the assumption of
duty, as was done by Honeywell's employee in the later phone conversation, or
which require a more complex evaluation of duty owed than that performed here
(Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220; Palka v
Servicemaster Mgt. Servs. Corp., 83 NY2d 579; see also, Jill Robbins, Inc. v AFA
Protective Sys., 223 AD2d 352). On this record, it is clear that Honeywell assumed a
duty to actually send an employee to check on Daniel. That was not done and
the duty was breached. Whether defendant's breach of that assumed duty
proximately caused Daniel's injuries or whether such injuries were foreseeable is a
question, as in other negligence cases, for the jury to resolve.
Concur--Williams, J. P., Wallach, Saxe and Buckley, JJ.