Marrero v. City of N.Y.

• Decision Date: 16 April 2020
• Docket Number: Index No. 518328/2016
• Parties: LUIS DIAZ MARRERO, Plaintiff, v. THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF HOMELESS SERVICES, COALITION FOR THE HOMELESS, INC., BUSHWICK ECONOMIC DEVELOPMENT CORP., d/b/a BEDCO, EDIE HARRRIS RESIDENTIAL FACILITY, HUGHETTE JASPER, and OASIS MOTEL Defendants
• Court: New York Supreme Court

2020 NY Slip Op 31510(U)

LUIS DIAZ MARRERO, Plaintiff,
v.
THE CITY OF NEW YORK,
NEW YORK CITY DEPARTMENT OF HOMELESS SERVICES,
COALITION FOR THE HOMELESS, INC.,
BUSHWICK ECONOMIC DEVELOPMENT CORP.,
d/b/a BEDCO, EDIE HARRRIS RESIDENTIAL FACILITY,
HUGHETTE JASPER, and OASIS MOTEL Defendants

Index No. 518328/2016

New York Supreme Court

RECEIVED: May 18, 2020
April 16, 2020

NYSCEF DOC. NO. 119

At an IAS Term, Part 81 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 16^th day of April, 2020.

PRESENT: HON. CARL J. LANDICINO, Justice.

DECISION AND ORDER

Motion Sequence #2, #3, #4 and #5

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

	Papers Numbered
Notice of Motion/Cross-Motion and; Affidavits (Affirmations) Annexed	1/2, 3/4, 5/6, 7/8
Opposing Affidavits (Affirmations)	9, 10, 11, 12
Reply Affidavits (Affirmations)	13, 14, 15
Memorandum of Law	16

After a review of the papers and oral argument the Court finds as follows:

The Defendants, the City of New York (hereinafter referred to as the "City"), New York City Department of Homeless Services (hereinafter referred to as "DHS", Bushwick Economic Development Corporation d/b/a BEDCO (hereinafter referred to as "BEDCO"), Edie Harris Residential Facility (hereinafter referred to as "EHRF"), and Hughette Jasper (hereinafter referred to as "Jasper") (hereinafter collectively referred to as the "City Defendants") move (motion sequence #2) for summary judgment pursuant to CPLR 3212, and dismissal of the

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Plaintiff, Luis Diaz Marrero's (hereinafter referred to as the "Plaintiff")'s complaint and all cross-claims against the City Defendants.

The Plaintiff cross-moves (motion sequence #3) for an order either (i) striking Defendant Coalition for the Homeless, Inc.'s (hereinafter referred to as the "Coalition") and the City Defendants' answers, pursuant to CPLR 3126, for their purported failure to comply with the Plaintiff's Notice of Discovery & Inspection, dated February 11, 2019; or (ii) in the alternative, an order compelling these Defendants to comply with the Plaintiff's Notice of Discovery & Inspection, pursuant to CPLR 3124.

Defendant Oasis Motel (hereinafter referred to as "Oasis") also moves (motion sequence #4) for summary judgment pursuant to CPLR 3212, and dismissal of the Plaintiff's complaint and all cross-claims as against Oasis.

Defendant Coalition also moves (motion sequence #5) for summary judgment pursuant to CPLR 3212, and dismissal of the Plaintiff's complaint and all cross-claims as against Coalition.

The Plaintiff, at the time of the occurrence a homeless shelter resident, alleges that he was intentionally injured by another shelter resident, Robert Diaz (hereinafter referred to as "Diaz"). At that time, December 25, 2015, the Plaintiff was sharing a residential unit with Diaz, within a shelter located at the Oasis Motel (hereinafter referred to as the "Oasis Shelter"). Specifically, the Plaintiff alleges that Diaz slashed his face with a blade, seriously injuring him. The Plaintiff claims that the Defendants (in their various capacities) were negligent and are responsible for his injuries. The Plaintiff argues that the Oasis Shelter was not a safe facility and was improperly operated.

The City Defendants argue that the Plaintiff's claim is not viable, because the slashing was not foreseeable. As such, the City Defendants contend that they are not liable to the Plaintiff. The City Defendants aver that for liability to be established the alleged assault had to be a probable outcome of the shared unit arrangement. They posit that the assault was not probable because, aside from a prior isolated incident, when Diaz allegedly exposed his genitalia to the Plaintiff (the "Flashing Incident"), the Plaintiff and Diaz had no prior incidents. The City Defendants contend that after the isolated incident, the Plaintiff and Diaz resided together for periods of time thereafter. Further, the City Defendants contend that the Plaintiff and Diaz resumed shared living space for approximately two weeks prior to the slashing. The City

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Defendants also argue that the Plaintiff and Diaz shared food and liquor on the night of the slashing, contending that this constitutes additional proof of their harmonious relationship prior to the time of the slashing.

Further, the City Defendants argue that as the Plaintiff's claim relates to Jasper individually, Jasper cannot be held personally liable for the tortious acts of her principal, unless Jasper undertook an individual responsibility for her actions and took an affirmative action in furtherance of the tort. Jasper purportedly had no direct contact with the residents within the Oasis Shelter and did not conduct day to day activities at the Oasis Shelter. Consequently, the City Defendants argue that Jasper is not a proper defendant.

The Plaintiff, in opposition, argues that the City Defendants' motion should be denied because their argument is flawed. The Plaintiff contends that (i) the City Defendants were aware that the Plaintiff made prior complaints about Diaz after the Flashing Incident; (ii) the City Defendants promptly separated the Plaintiff and Diaz after the Flashing Incident and kept them separated for a period of three weeks because of that incident; (iii) when Diaz and the Plaintiff were thereafter placed in a shared living accommodation, the Plaintiff promptly gave notice to the City Defendants about the inappropriateness of that arrangement, in light of their history, and reported that he was uncomfortable with his new living placement.

Furthermore, the Plaintiff alleges that the City Defendants should have been more vigilant in protecting the Plaintiff because (a) immediately prior to the slashing, Diaz abused the Plaintiff, while the Plaintiff was asleep, by kissing him without permission; (b) the Plaintiff immediately reported this abuse to the City Defendants' security personnel at the Oasis Shelter's Security Station, who promised to (1) call the New York City Police Department and (2) detain Diaz at the Security Station until the Police arrived; and (c) the Plaintiff informed the City Defendants' security personnel that he was returning to his assigned room to sleep. The Plaintiff contends that notwithstanding the afore-referenced assurances, the City Defendants failed to detain or otherwise restrain Diaz from returning to the room to attack him.

Oasis claims that it should be awarded summary judgment since it was not involved in the incident. Oasis contends that it is merely the owner of the Oasis Motel and that DHS leased space within the Oasis Motel in order to accommodate the need for homeless housing. Oasis further contends that it did not maintain any operational control of the space that DHS leased

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(the Oasis Shelter). Oasis argues that BEDCO operated and maintained the Oasis Shelter, at the time of the slashing. Oasis contends that BEDCO also agreed to indemnify Oasis from any liability that may have flow from BEDCO's use and operation of the Oasis Shelter at the Oasis Motel. Consequently, Oasis concludes that it has no duty to the Plaintiff and it cannot be liable to the Plaintiff, and the action and all cross-claims against it must be dismissed.

The Coalition contends that it is merely an advocacy group that (i) has no responsibility for the Oasis Motel or Shelter; (ii) did not operate, maintain, or control the Oasis Motel or Shelter; (iii) was under no obligation to secure the Oasis Motel or Shelter; and (iv) had no duty to the Plaintiff.

Generally, "[s]ummary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it 'should only be employed when there is no doubt as to the absence of triable issues of material fact." Kolivas v. Kirchoff, 14 A.D.3d 493 [2nd Dept 2005], citing Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 1341, 320 N.E.2d 853[1974]. The proponent for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate absence of any material issues of fact. See Sheppard-Mobley v. King, 10 A.D.3d 70, 74 [2nd Dept 2004], citing Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N..E.2d 572 [1986], Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985].

Once a moving party has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Graham & Han Real Estate Brokers v. Oppenheimer, 148 A.D.2d 493 [2nd Dept 1989]. Failure to make such a showing requires denial of the motion, regardless of the...