Mirza v. Metropolitan Life Insurance Company
| Decision Date | 29 December 2003 |
| Docket Number | 2002-10882. |
| Citation | 2 A.D.3d 808,770 N.Y.S.2d 384,2003 NY Slip Op 19973 |
| Parties | SHAMIM MIRZA, Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY et al., Defendants, and RICHARD A. PAREDES, Individually and Doing Business as SWAT WATCHGUARD APPREHENSION TEAM, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion which was to dismiss the complaint insofar as asserted against SWAT Security Group, Inc., and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, without costs or disbursements, and the complaint insofar as asserted against SWAT Security Group, Inc., is reinstated.
The defendant SWAT Security Group, Inc. (hereinafter SWAT), was hired by the organizer of a festival held in a church school auditorium in Queens to provide security guards for the event. The plaintiff alleged, inter alia, that he was involved in an altercation with a group of young men inside the school, that the security guards forced him to leave the safety of the school, and that thereafter he was pursued and stabbed in the street by members of this group of men.
The Supreme Court properly determined that SWAT established that it owed no contractual duty to protect the plaintiff, and the plaintiff failed to raise a triable issue of fact as to whether the agreement between SWAT and the festival organizer was intended to confer a benefit on him as a member of the general public (see Duff v Grenadier Realty Corp., 247 AD2d 577 [1998]; Abramian v Travellers Hotel Assoc. of LaGuardia, 203 AD2d 398 [1994]; Buckley v I.B.I. Sec. Serv., 157 AD2d 645 [1990]).
However, SWAT failed to submit evidence sufficient to establish as a matter of law that it owed no common-law duty to the plaintiff, therefore, the Supreme Court erred in granting its motion to dismiss the complaint. "[O]ne who assumes a duty to act, even though gratuitously, may thereby become subject to the duty of acting carefully" (Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 522 [1980] [internal quotation marks omitted]). The deposition...
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