Stora v. City of N.Y.
Decision Date | 22 November 2013 |
Docket Number | Index No. 117071/2008 |
Citation | 2013 NY Slip Op 33123 |
Parties | SKIBOKY SHAVER STORA, Plaintiff v. CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF HOMELESS SERVICES, VOLUNTEERS OF AMERICA - GREATER NEW YORK, INC., FJC SECURITY SERVICES, INC., and MARCUS SERRANO, Defendants |
Court | New York Supreme Court |
DECISION AND ORDER
I. BACKGROUND
Plaintiff sues to recover for personal injuries sustained August 17, 2005, when defendant Serrano shot plaintiff while at a men's shelter on premises owned by defendants City of New York and New York City Department of Homeless Services (DHS) and operated by defendant Volunteers of America - Greater New York, Inc. Volunteers of America contracted with defendant FJC Security Services, Inc., to provide security at the shelter. After plaintiff and Serrano engaged in an altercation at the shelter, Serrano left the premises, secured a firearm, and returned to the shelter by climbing over a tall wrought iron fence that surrounded the shelter grounds.
FJC Security Services moves for summary judgment dismissing all claims against this defendant. C.P.L.R. § 3212(b). The City defendants and Volunteers of America cross-move for summaryjudgment dismissing plaintiff's claims against these defendants and for summary judgment on Volunteers of America's cross-claim against FJC Security Services for contractual indemnification. Plaintiff separately moves: (1) to preclude defendants from presenting any evidence regarding past unlawful narcotics activity by plaintiff and (2) to impose penalties for defendants' noncompliance or compel their compliance with disclosure demands. C.P.L.R. §§ 3124, 3126(3). For the reasons explained below, the court grants FJC Security Services' motion in its entirety, denies the City defendants' and Volunteers of America's cross-motion, reserves a decision on plaintiff's motion to preclude evidence until trial testimony is heard, and denies his motion to impose penalties for nondisclosure or to compel disclosure.
II. SUMMARY JUDGMENT STANDARDS
Defendants, to obtain summary judgment, must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012); Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735 (2008); JMD Holding Corp. v. Concrress Fin. Corp., 4 N.Y.3d 373, 384 (2005); Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 81 (2003). If defendants satisfy this standard, the burden shifts to plaintiff and any opposing co-defendant to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. Morales v. D & A Food Serv., 10 N.Y.3d 911, 913 (2008); Hyman v.Queens County Bancorp, Inc., 3 N.Y.3d 743, 744 (2004). In evaluating the evidence for purposes of the defendants' motion and cross-motion, the court construes the evidence in the light most favorable to plaintiff and any opposing co-defendant. Vega v. Restani Constr. Corp., 18 N.Y.3d at 503; Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 37 (2004). If defendants fail to meet their initial burden, the court must deny summary judgment despite any insufficiency in the opposition. Vega v. Restani Constr. Corp., 18 N.Y.3d at 503; JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d at 384.
III. FJC SECURITY SERVICES' MOTION FOR SUMMARY JUDGMENT
As a contractor providing services to co-defendants, FJC Security Services is liable to plaintiff for its negligence or other culpable conduct in performing the contract, when its breach of a contractual duty caused plaintiff's injury, only under one of the following sets of circumstances. (1) FJC Security Services displaced the duty of City defendants or Volunteers of America to maintain their premises in a safe condition. (2) Plaintiff detrimentally relied on FJC Security Services' performance of its contract. (3) FJC Security Services launched the "instrument of harm" that effected the assault on plaintiff. Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140 (2002); Rahim v. Sottile Sec. Co., 32 A.D.3d 77, 80-81 (1st Dep't 2006).
The parties stipulated at oral argument that the court may consider the contracts presented in support of or in oppositionto summary judgment as authenticated and admissible for purposes of determining the motion and cross-motion for that relief. The contract dated August 5, 2003, between Volunteers of America and FJC Security Services determined what security the latter party was to provide. Section 6.1(c) of that contract provides:
It is understood and agreed by and between the parties that: FJC is not a property insurer; . . . that FJC is being paid hereunder for a guard system intended to deter certain risks of loss and that all amounts being charged hereunder by FJC are not sufficient to guarantee that no loss or damage will occur; that FJC makes no warrant or guarantee that the services supplied will avert or prevent occurrences; and that FJC's liability for loss of property shall be limited to damages resulting from the negligence or other wrongful conduct of an FJC officer or employee.
Aff. of Peter Read Ex. H, at 6; Aff. of Albert E. Risebrow Ex. D, at 6.
In the contract dated July 1, 2005, between the City and FJC Security Services, under Agreement § 111(3) FJC Security Services agreed "to perform all the services described in the Specifications attached hereto as Part I of the Proposal for Bid." Read Aff. Ex. H § 111(3). Under the Specifications for unarmed security guards, § 1(3.0), FJC Security Services' personnel are "accountable to the Shelter Director and shall comply with the written and verbal instructions received from the Contract Administrator, Shelter Director, and Shift Supervisor." Id. § 1(3.0). Section 1(2.0) defines the holders of each of these three titles as DHS representatives. Specifications § I(13.1) further provides that: "Posts shall be determined by DHS, however [sic] the Agency may consult with the contractor regarding the appropriateness of any individual post or theoverall security plan and placement of guards at any DHS site." Id. § I(13.1). Consistent with this last provision, Melvin Howard, a DHS inspector, testified that DHS officers sometimes took over the FJC Security Services guards' duties manning the metal detectors and x-ray machines at the building entrances.
FJC Security Services' contracts do not displace the obligations of the City defendants or Volunteers of America to maintain safety on the shelter premises. Espinal v. Melville Snow Contrs., 98 N.Y.2d at 141. Under the contract between FJC Security Services and the City, DHS determined where FJC Security Services' guards were to be posted. At most, DHS retained discretion, but was not required, to consult with FJC Security Services about the posts. Consistent with the City contract, the contract between FJC Security Services and Volunteers of America required FJC Security Services' guards to follow DHS employees' directions. FJC Security's disclaimer of any obligation to prevent "occurrences," along with DHS's exclusive determination and, at most, FJC Security Systems' joint consultation with DHS, at its discretion, regarding FJC Security Systems' duties, further demonstrates that the latter's obligations did not displace the obligations of the City defendants and Volunteers of America. Read Aff. Ex. H, at 6; Risebrow Aff. Ex. D, at 6. See Rahim v. Sottile Sec. Co., 32 A.D.3d at 78, 82.
As for the second basis on which FJC Security Services may be liable to plaintiff, plaintiff himself fails to allege any facts supporting his detrimental reliance on FJC SecurityServices' contractual performance. Espinal v. Melville Snow Contrs., 98 N.Y.2d at 141. Nor does anything in the record of other parties' and witnesses' testimony and documentary evidence sustain such a claim. Plaintiff testified that he was aware of, but never reported, persons entering the shelter grounds by climbing over the fence. He never observed security personnel at the shelter's perimeter, yet also never reported or complained about any such a lapse. See Rahim v. Sottile Sec. Co., 32 A.D.3d at 81. Assuming that FJC Security Services negligently performed its contractual obligations, no evidence demonstrates that such conduct placed plaintiff in a more vulnerable position than if FJC Security Services had never provided security. Murshed v. New York Hotel Trades Council & Hotel Assn. of N.Y. City Health Ctr., Inc., 71 A.D.3d 578, 579 (1st Dep't 2010); Rahim v. Sottile Sec. Co., 32 A.D.3d at 82.
While plaintiff does claim FJC Security Services' negligence in failing to perform its duties under its contracts, the record also does not support that any nonperformance by FJC Security Services affirmatively propelled Serrano into his attack on plaintiff, as opposed to passively allowing it to occur. Plaintiff and Serrano confirmed their earlier altercation. Serrano detailed how he departed from the shelter; secured a firearm outside the shelter grounds, independent of any shelter personnel; returned to the shelter; and deliberated on his own over his planned attack on plaintiff. Thus any failure of FJC Security Services to perform its contracts did not launch thedangerous force that inflicted injury on plaintiff. Espinal v. Melville Snow Contrs., 98 N.Y.2d at 142; Rahim v. Sottile Sec. Co., 32 A.D.3d at 81. See Ravallese v. JMED Holdings, LLC, 109 A.D.3d 705 (1st Dep't 2013).
Nor does plaintiff identify any specific contractual duty that FJC Security Services negligently performed or failed to perform. The absence of security personnel at the time when and place where Serrano shot plaintiff is not enough to raise an inference that FJC Security Services failed to perform its contractual duty if the personnel were performing other required duties. James v. Jamie Towers Hous. Co., 99 N.Y.2d...
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