Curry v. Baisley Park Associates
| Decision Date | 29 July 1994 |
| Citation | 617 N.Y.S.2d 420,162 Misc.2d 436 |
| Parties | Kenneth CURRY, Plaintiff, v. BAISLEY PARK ASSOCIATES, a Limited Partnership, Peter Perpignano, Triboro Management, Associated Companies, and Falcon Security Corp., Defendants. |
| Court | New York Supreme Court |
Michele F. Laskin, of the law firm Levine & Grossman, Mineola, for plaintiff.
Murray Prawer, of the law firm Thurm & Heller, New York City, for defendant Falcon Security.
Michael Lenoff, of Michael Levenson's law office, New York City, for defendant Baisley Park Associates.
Defendants Baisley Park Associates, Peter Perpignano and Triboro Management (collectively "Baisley") and defendant Falcon Security Systems, Inc., sued herein as Falcon Security Corp. ("Falcon") move for an order pursuant to CPLR 3212 dismissing plaintiff's complaint. Falcon also cross-moves for a summary order dismissing co-defendant Baisley's counterclaim for indemnification and contribution.
On February 9, 1992, plaintiff was shot in the neck by an unidentified assailant while on his way to visit his girlfriend, a resident of an apartment building ("Building") which is part of the Baisley Park complex in Queens County.
The shooting took place at about 9:30 PM on an outdoor walkway leading to the front entrance of the Building in the development. As a result of the incident, plaintiff was rendered quadriplegic. In the action underlying the instant motions, plaintiff has sued the entities that own and manage the apartment complex, as well as Falcon, the security services company retained by Baisley to patrol the complex, alleging that defendants breached their duty to take necessary precautions to protect him, as a legitimate visitor to the Building, from this crime, which he alleges was reasonably foreseeable. Defendants deny any duty to plaintiff; deny that the crime that injured him was reasonably foreseeable; and deny that they were the proximate cause of his injury.
A summary judgment "motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." CPLR 3212(b). Summary judgment should not be granted if a triable issue of material fact exists and on a summary motion, the court's function is issue finding rather that issue determination (Super v. Abdelazim, 108 A.D.2d 1040, 1042, 485 N.Y.S.2d 612; Krupp v. Aetna Life and Cas. Co., 103 A.D.2d 252, 261, 479 N.Y.S.2d 992; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718; Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498, 144 N.E.2d 387).
"To establish a prima facie case of negligence, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom." (Solomon v. City of New York, 66 N.Y.2d 1026, 1027, 499 N.Y.S.2d 392, 489 N.E.2d 1294.) A landlord may have a duty to maintain minimal security measures to protect tenants and visitors from the likelihood of criminal intrusions and may be held liable to an individual whose injuries were proximately caused by the absence of adequate security (Miller v. State of New York, 62 N.Y.2d 506, 478 N.Y.S.2d 829, 467 N.E.2d 493; Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606, 407 N.E.2d 451). Plaintiff herein alleges that when he was shot by an unidentified assailant he was within the scope of defendants' duty to protect against criminal acts to visitors on its premises.
However, plaintiff is not within the class of protected individuals as his situation is analogous to that in Waters v. New York City Housing Auth., 69 N.Y.2d 225, 230-231, 513 N.Y.S.2d 356, 505 N.E.2d 922, where the Court of Appeals determined that the landowner had no relationship to the unidentified assailant or to the injured plaintiff, who had no association with the premises independent of the crime itself. In the absence of such a relationship and association, the Court refused to extend the landlord's duty to "members of the public at large * * * who might be victimized by street predators" (id. at p. 229, 513 N.Y.S.2d 356, 505 N.E.2d 922) reasoning that the landlord lacked control over the actions of the wrongdoer who initially attacked the pedestrian and abducted her to the roof of an unlocked apartment building located on the landlord's premises.
Similarly, the need to place " 'controllable limits' on liability" (Waters v. New York City Housing Auth., 69 N.Y.2d 225, 230, 513 N.Y.S.2d 356, 505 N.E.2d 922, supra, citing Strauss v. Belle Realty Co., 65 N.Y.2d 399, 405, 492 N.Y.S.2d 555, 482 N.E.2d 34) exists here since this plaintiff, a non-resident of the complex, later admitted to the police that at the time of the shooting he had begun doing business with a new supplier of "crack"; that he owed money to his former supplier; and that while he was aware of the possibility of the shooting being a "set-up," he had discounted it. These admissions suggest that his injuries were proximately caused by the unforeseeable act of a third person, outside the landlord's control, who was intent on harming plaintiff (Tarter v. Schildkraut, 151 A.D.2d 414, 542 N.Y.S.2d 626, lv. denied 74 N.Y.2d 616, 549 N.Y.S.2d 961, 549 N.E.2d 152; Santiago v. New York City Hous. Auth., 101 A.D.2d 735, 475 N.Y.S.2d 50, affd 63 N.Y.2d 761, 480 N.Y.S.2d 321, 469 N.E.2d 839; Clayton v. Monaco, 24 Misc.2d 27, 203 N.Y.S.2d 624; and Clark v. City of Buffalo, 288 N.Y. 62, 66, 41 N.E.2d 459). Accordingly, the landlord "should not be held legally responsible for the conduct of others...
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