Opinion
May 13, 1996
Appeal from the Supreme Court, Kings County (Jackson, J.).
Ordered that the order is reversed insofar as appealed from by the defendant New York City Housing Authority, that branch of its motion which was to dismiss the complaint insofar as it alleged a cause of action against it sounding in common-law negligence is granted, the complaint is dismissed in its entirety insofar as asserted against it, and the action against the remaining defendants is severed; and it is further,
Ordered that the order is affirmed insofar as cross-appealed from; and it is further,
Ordered that the defendant New York City Housing Authority is awarded one bill of costs.
The decedent, while walking on the grounds of the Red Hook Housing Project, was fatally shot after he was caught in the crossfire of a running gun battle between three teenagers. One of the perpetrators was alleged to be a tenant of the housing project. Thereafter, the plaintiff brought the instant action against, inter alia, the defendant New York City Housing Authority (hereinafter NYCHA), the owner of the housing project. Under the circumstances of this case, NYCHA is entitled to summary judgment dismissing the complaint insofar as asserted against it.
A landowner has a duty to maintain its property in a reasonably safe condition and to take reasonable precautionary measures to protect members of the public from reasonably foreseeable criminal acts of third persons ( see, Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 518-519; Fontana v. Falides Assocs., 202 A.D.2d 631; Provenzano v. Roslyn Gardens Tenants Corp., 190 A.D.2d 718, 720; Hendricks v. Kempler, 156 A.D.2d 425; Iannelli v. Powers, 114 A.D.2d 157, 161). This duty is premised on the landowner's control over the premises ( see, Johnson v. Slocum Realty Corp., 191 A.D.2d 613, 614; Blatt v. New York City Hous. Auth., 123 A.D.2d 591, 592). Contrary to the plaintiff's contention, however, under the circumstances of this case, NYCHA had no reasonable opportunity or ability to control the conduct of the perpetrators ( see, Siino v. Reices, 216 A.D.2d 552; Wright v. New York City Hous. Auth., 208 A.D.2d 327, 331; Johnson v Slocum Realty Corp., supra, at 614-615; Firpi v. New York City Hous. Auth., 175 A.D.2d 858, 859-860; Blatt v. New York City Hous. Auth., supra, at 593). Moreover, because the tragic shooting incident occurred in the outdoor common area of the housing project NYCHA had no duty to protect the decedent ( see, Concepcion v. New York City Hous. Auth., 207 A.D.2d 857; Allen v New York City Hous. Auth., 203 A.D.2d 313; Matter of Sanchez v New York City Hous. Auth., 194 A.D.2d 613). To hold otherwise would expose NYCHA "and other similarly situated landowners to a virtual limitless liability" ( Leyva v. Riverbay Corp., 206 A.D.2d 150, 155).
Contrary to the plaintiff's contention the Supreme Court properly dismissed the complaint insofar as it asserted a cause of action alleging a special relationship between the decedent and NYCHA. The plaintiff's conclusory and unsubstantiated allegations regarding the existence of such a relationship are insufficient to create an issue of fact warranting the denial of NYCHA's motion for summary judgment ( see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562).
Therefore, the complaint is dismissed in its entirety as against NYCHA. Mangano, P.J., Miller, Ritter and Pizzuto, JJ., concur. [ See, 164 Misc.2d 861.]