Jeffrey E. Bishop, Plaintiff, v. County of Erie, Defendant; Jeffrey E. Bishop, Respondent, v. Burns International Security Systems, Inc., Appellant

Jeffrey E. Bishop, Plaintiff, v County of Erie, Defendant. Jeffrey E. Bishop, Respondent, v Burns International Security Systems, Inc., Appellant. [616 NYS2d 308] [MAJORITY] Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied the summary judgment motion of defendant Burns International Security Systems, Inc. (Burns). Although the Security Services Agreement between Burns and the Buffalo Bills provided that it was not to confer any rights on any other party as a third-party beneficiary, "even inaction may give rise to tort liability where no duty to act would otherwise exist if, for example, performance of contractual obligations has induced detrimental reliance on continued performance and inaction would result not 'merely in withholding a benefit, but positively or actively in working an injury’ ” (Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, 226, quoting Moch Co. v Rensselaer Water Co., 247 NY 160, 167). Burns failed to establish its entitlement to summary judgment as a matter of law based upon the alleged absence of a duty owing from it to plaintiff. (Appeal from Order of Supreme Court, Erie County, Cosgrove, J.—Summary Judgment.) Present—Green, J. P., Balio, Fallon, Callahan and Davis, JJ.