Bryan v. Crobar

• Court: New York Supreme Court — Appellate Division
• Citation: Bryan v. Crobar, 65 A.D.3d 997, 885 N.Y.S.2d 122, 2009 NY Slip Op 6394 (N.Y. App. Div. 2009)
• Decision Date: 08 September 2009
• Docket Number: 2008-05626.
• Parties: ANTOINETTE BRYAN et al., Appellants, v. CROBAR et al., Respondents.

65 A.D.3d 997

885 N.Y.S.2d 122

2009 NY Slip Op 06394

ANTOINETTE BRYAN et al., Appellants, v. CROBAR et al., Respondents.

2008-05626.

Appellate Division of the Supreme Court of New York, Second Department.

Decided September 8, 2009.

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (Weiss, J.), dated May 27, 2008, which granted the defendants' motion for summary judgment dismissing the complaint.

Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Crobar and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, with one bill of costs to the plaintiffs.

On July 13, 2006 the plaintiffs were shot by an unknown assailant at the defendant Crobar, a nightclub located in Manhattan. The plaintiffs commenced this action against Crobar, RN Realty, LLC (hereinafter RN Realty), which owns the building where Crobar was located, and Neal A. Schwartz, the owner of RN Realty. The plaintiffs alleged that they were injured as a result of the club's inadequate security. The defendants moved for summary judgment dismissing the complaint, and the Supreme Court granted the motion. We modify.

The Supreme Court properly granted those branches of the defendants' motion which were for summary judgment dismissing the complaint insofar as asserted against Schwartz and RN Realty. The evidence proffered by the defendants, and uncontroverted by the plaintiffs, established that Schwartz and RN Realty transferred full possession and control of the space where the shooting occurred to Crobar's owners, and never exercised any control over either the operation of the club or the conduct of its patrons. Therefore, Schwartz and RN Realty cannot be held liable on the theory that they failed in their common-law duty to take reasonable measures to secure the club against foreseeable criminal activity (see Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 232-233 [2001]). Similarly, liability may not be imposed upon those defendants pursuant to the provisions of Real Property Law § 231 (2), as there is no admissible evidence that Schwartz and/or RN Realty were given notice of repeated criminal activity such that the risk of injury was likely and that there was a causal relationship between the subject activities and the plaintiffs' injuries (see Alonso v Branchinelli, 277 AD2d 408, 409 [2000]).

While Crobar established its prima facie entitlement to judgment as a matter of law by demonstrating that it had taken minimal security precautions against foreseeable criminal acts of third parties (see Maheshwari v City of New York, 2 NY3d 288, 295 [2004]; Logan v 530 W. 28th St., L.P., 48 AD3d 430 [2008]), the plaintiffs raised a triable issue of fact as to foreseeability (see Luisa R. v City of New York, 253 AD2d 196, 200 [1999]). A possessor of real property is under a duty to maintain reasonable security measures to protect those lawfully on the premises from reasonably foreseeable criminal acts of third parties (see Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 518-519 [1980]; Dillman v Bohemian Citizens Benevolent Socy. of Astoria, 227 AD2d 434, 435 [1996]). To establish foreseeability, there is no requirement that the past experience of criminal activity be of the same type as that to which the plaintiff was subjected (see Jacqueline S. v City of New York, 81 NY2d 288, 294-295 [1993]; Doe v...