Leyva v. Riverbay Corp.

• Decision Date: 01 December 1994
• Parties: Arturo LEYVA, Plaintiff-Respondent, v. RIVERBAY CORPORATION, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 333

620 N.Y.S.2d 333

206 A.D.2d 150

Arturo LEYVA, Plaintiff-Respondent, v. RIVERBAY CORPORATION, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Dec. 1, 1994.

Richard E. Lerner, of counsel, New York City (Glenn Dienstag and Eugene Boule, on the brief, Wilson, Elser, Moskowitz, Edelmen & Dicker, attorneys), for defendant-appellant.

David B. Turret, of counsel, New York City (Marla L. Schiff, on the brief, Julien & Schlesinger, P.C., attorneys), for plaintiff-respondent.

Before MURPHY, P.J., and SULLIVAN, ROSENBERGER and TOM, JJ.

SULLIVAN, Justice.

This appeal presents the issue of whether a private owner of a large housing complex may, without any showing that one of its many outdoor public walkways presents a danger to pedestrians, be held liable to a person criminally assaulted on that walkway on the ground that, had the owner exercised reasonable control over its premises, it would have observed the perpetrators before they assaulted their victim and thereby prevented the crime.

Co-Op City, owned by defendant Riverbay Corporation (Co-Op City), is a complex of approximately two square miles, with more than 32 miles of sidewalks and pathways, in which approximately 55,000 people reside. It consists of over 35 high-rise buildings and, including triples and townhouses, over 200 residential buildings in all, as well as several shopping centers, garages, community centers and stores.

On January 28, 1991, at 11 p.m., at the conclusion of his shift, plaintiff, a Co-Op City employee, left the Co-Op City community center where he had been working and began walking on a paved pathway leading away from the center in the direction of his home, also in Co-Op City. As he was proceeding down the pathway, plaintiff, seeing two men on another path which intersected his, slowed to allow them to pass. When the two men stopped and looked at him, plaintiff, apprehensive, turned and tried to return to the community center. One of the men ran toward plaintiff while the other pointed a handgun at him. Plaintiff stopped, as ordered, and, when the gunman asked for money, responded, "I don't have any." When plaintiff attempted to take out his wallet to convince his assailants of that fact, the other man pointed a shotgun at his head. Convinced that plaintiff indeed had no money, the man with the shotgun left, leaving behind his confederate, who was pointing his handgun at plaintiff's chest. As plaintiff tried to back away, the man who stayed behind lowered his gun, pointing it at plaintiff's right leg. Aware of a dumpster behind him, plaintiff began walking backwards, hoping to hide by the dumpster. When plaintiff reached the dumpster and attempted to hide behind it, the man with the handgun shot him in the thigh and fled. Plaintiff could see both men enter a mini-van parked about 30 to 40 feet away on the service road of the Hutchinson River Parkway. A couple parking their car on the same road drove plaintiff to a nearby security booth, from which the police and an ambulance were summoned.

After joinder of issue, Co-Op City moved for summary judgment, arguing, inter alia, that it owed no duty to plaintiff to protect him from injuries perpetrated by unknown criminally bent third parties in an area where there was no substantial history of prior criminal activity. In denying the motion, the IAS court, insofar as is relevant to the disposition of the appeal, found triable issues of fact as to whether prior incidents in the vicinity, some 200 feet away from the incident in question, gave Co-Op City notice of criminal activity and, if so, whether its security force was adequate and whether it should have focused its resources in the area where the crime occurred. This appeal followed. We reverse, grant summary judgment and dismiss the complaint.

The possessor of land is under a common-law duty to maintain the public areas of his property in a reasonably safe condition for those who use it. (Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 519, 429 N.Y.S.2d 606, 407 N.E.2d 451; Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868; see, Restatement [Second] of Torts §§ 359-360.) This duty includes the obligation to take minimal precautions to protect members of the public from the reasonably foreseeable criminal acts of third persons. (Miller v. State of New York, 62 N.Y.2d 506, 513, 478 N.Y.S.2d 829, 467 N.E.2d 493; Nallan v. Helmsley-Spear, Inc., supra, 50 N.Y.2d at 519, 429 N.Y.S.2d 606, 407 N.E.2d 451.)

Since the possessor of land, be he landowner or leaseholder, is not an insurer of the safety of those who use his premises (Nallan v. Helmsley-Spear, Inc., supra, 50 N.Y.2d at 519, 429 N.Y.S.2d 606, 407 N.E.2d 451; Iannelli v. Powers, 114 A.D.2d 157, 161, 498 N.Y.S.2d 377, lv. denied, 68 N.Y.2d 604, 506 N.Y.S.2d 1027, 497 N.E.2d 707), he cannot, even in the face of a prior history of criminal activity on the premises, "be held to a duty to take protective measures unless it is shown that he either knows or has reason to know from past experience 'that there is a likelihood of conduct on the part of third persons * * * which is likely to endanger the safety of the visitor' " (Nallan v. Helmsley-Spear, Inc., supra, 50 N.Y.2d at 519, 429 N.Y.S.2d 606, 407 N.E.2d 451, quoting Restatement [Second] of Torts § 344, comment f.) It is that knowledge, actual or constructive, that imposes the obligation to " 'take precautions * * * and to provide a reasonably sufficient number of servants to afford a reasonable protection.' " (Id., quoting Restatement [Second] of Torts § 344, comment f.)

In Nallan, for instance, the plaintiff was shot by an unknown assailant after normal business hours in the unattended lobby of the defendant's building, in which, in the 21 months preceding the shooting, there had been 107 reported crimes, including at least 10 committed against the person, although none were shown to have been committed in the lobby. On these facts, the Court of Appeals found that the plaintiff made out a prima facie case in negligence, concluding that "a rational jury could have found from the history of criminal activity in the other parts of the building that a criminal incident in the lobby was a significant, foreseeable possibility." (50 N.Y.2d at 520, 429 N.Y.S.2d 606, 407 N.E.2d 451.)

Unlike the victim in Nallan, however, plaintiff was assaulted, not in the restrictive confines of the lobby of a building with its easy amenability to the posting of guards and sign-in and sign-out procedures, but on an obscure...