Opinion
38243/15
04-14-2016
Paula Kowalczyk, Plaintiff, v. Two Trees Management Co., LLC, Defendant.
Plaintiff: Paula Kowalczyk Pro se Defendant's Atty: Goldberg Weprin Finkel Goldstein LLP 1501 Broadway, 22nd Floor New York, NY 10036
Plaintiff: Paula Kowalczyk Pro se Defendant's Atty: Goldberg Weprin Finkel Goldstein LLP 1501 Broadway, 22nd Floor New York, NY 10036 Adam Silvera, J.
Plaintiff commenced this action against defendant to recover monetary damages for the loss or theft of plaintiff's personal property. Defendant now brings the instant motion for summary judgment, pursuant to CPLR § 3212, seeking to dismiss plaintiff's action. Plaintiff opposes defendant's motion and defendant replies.
DISCUSSION
The standards of summary judgment are well settled. To grant summary judgment, it must be clear that no material or triable issues of fact are presented. See Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case". Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). Once such entitlement has been demonstrated by the moving party, the burden shifts to the party opposing the motion to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure...to do [so]". Zuckerman v City of New York, 49 NY2d 557, 560 (1980). However, the Court of Appeals has made clear that bare allegations or conclusory assertions are insufficient to create genuine, bona fide issues of fact necessary to defeat such a motion. See Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 (1978).
Here, the facts are largely uncontested. Defendant is the management company for a commercial building located at 20 Jay Street, Brooklyn, NY 11201 (hereinafter the "Premises"). Plaintiff is not a tenant of the Premises, nor was plaintiff granted permission by defendant to use the Premises. On June 12, 2015, plaintiff, a wardrobe stylist, went to Resource Magazine, located in room 735 of the Premises, for a photo shoot. Following the photo shoot, plaintiff and her assistant, Stacie Houlker, took the freight elevator with their equipment. As plaintiff and Ms. Houlker unloaded the freight elevator, onto the loading dock which opens up into a public sidewalk, they discovered that one duffle bag was missing. Plaintiff states that she tried to contact defendant numerous times but was unable to reach anyone or get any information about the duffle bag. According to defendant, plaintiff failed to reach out to defendant, and instead commenced this action. Regardless of whether plaintiff contacted defendant regarding the subject duffle bag and her personal property therein, it is undisputed that plaintiff contacted the police on June 19, 2015 to report the incident that occurred one week prior. It is further undisputed that, in the complaint made to the police, plaintiff stated that she lost her suitcase and does not think she is a victim of a crime. However, in support of her opposition papers, plaintiff states that she believes the duffle bag was stolen by an unknown third party.
In support of its motion for summary judgment, defendant proffers, inter alia, the affidavit of Richard Shill, the chief financial officer of defendant, a copy of the police complaint report dated June 19, 2015, and a picture of the loading dock where the alleged theft occurred. A review of the complaint from the New York City Police Department reveals that plaintiff "lost her suitcase...[,] she does not know what happened to it and does not think she's a victim of a crime." Notice of Motion, Exh. B, New York City Police Department Omniform System - Complaints, dated June 19, 2015, p. 1. Defendant argues that plaintiff is not a tenant of the Premises, nor did defendant grant her permission to use the loading dock of the Premises where plaintiff's personal property was allegedly stolen. Defendant further argues that it owes no duty to protect plaintiff from either theft by an unknown third party or lost of personal property due to plaintiff's own negligence. According to Mr. Shill, he is unaware of any prior thefts in the loading dock of the Premises.
In opposition, plaintiff states that she believes her duffle bag was stolen while she was unloading the freight elevator onto the loading dock. Thereafter, plaintiff states that she tried to contact defendant numerous times about her personal property, and eventually contacted the police to file a report. According to plaintiff, New York City police officers Sandoval and Reilly advised her that there have been dozens of prior thefts and break ins in the Premises. To support her claim, plaintiff proffers, inter alia, the affidavit of Stacie Houlker and two articles, printed from the internet, regarding thefts in Dumbo, Brooklyn, New York.
In order for defendant to be found negligent, it must be demonstrated that they owed a duty to plaintiff, and the existence and scope of that duty is a question for the courts. See Hamilton v Beretta U.S.A. Corp., 96 NY2d 222 (2001). The Court of Appeals has held that "[l]andlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including a third party's foreseeable criminal conduct. A tenant may recover damages, however, only on a showing that the landlord's negligent conduct was a proximate cause of the injury." Burgos v Aqueduct Realty Corp., 92 NY2d 544, 548 (1998)(internal quotations and citations omitted). "The duty extends...to a guest of a tenant." Novikova v Greenbriar Owners Corp., 258 AD2d 149, 151 (2nd Dep't 1999). "This duty is premised on the landowner's control over the premises". Daly v City of New York, 227 AD2d 432, 433 (2nd Dep't 1996). "To withstand summary judgment, the plaintiff need only raise a triable issue of fact as to whether the defendant's conduct proximately caused the injury. However, absent such a showing, the theory that the defendant's inadequate security measures permitted an intruder to gain entry to the premises necessarily entails speculation and will not survive summary judgment". Sakhai v 411 East 57th Street Corp., 272 AD2d 231, 233 (1st Dep't 2000)(internal citations omitted).
As stated above, in order for defendant to be liable to plaintiff, it must be shown that defendant owed a duty to plaintiff. A landlord's common law duty extends only to reasonably foreseeable criminal acts by third parties. See James v Jamie Towers Housing Co., Inc., 99 NY2d 639, 641 (2003). "[T]o establish foreseeability, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location." Novikova v Greenbriar Owners Corp. supra, 258 AD2d at 153. In cases in which such reasonable foreseeability has been found, multiple crimes had been committed in the subject building within the year preceding the incident in question, thereby putting the landlords on notice of the distinct possibility of criminal activity taking place on their premises. See Rios v Jackson Assoc., 259 AD2d 608 (2nd Dep't 1999). "In addition, a plaintiff must prove that the landlord's negligent conduct was a proximate cause of his injury, such as by presenting evidence that his assailant was an intruder who had gained access to the premises through a negligently-maintained entrance". Id. at 609. None of these factors are present in the instant matter.
The affidavit of Stacie Houlker states that one of the duffle bags "went missing" and that it is "unclear if someone from the building or off the street took the bag". Houlker Aff., p.1. The articles submitted by plaintiff indicate that there were six burglaries in 55 Washington Street, Brooklyn, NY between April and June of 2009, and two thefts in 68 Jay Street, Brooklyn, NY between December 2010 and January 2011. The Court notes that the latest incident mentioned took place over four years ago, and none of the thefts took place at the Premises. The Court further notes that the alleged theft occurred in the loading dock of the Premises, which undisputedly opens to the public and is accessible by the public. "This implicates various limitations on the duty and ability to provide security precautions". Novikova v Greenbriar Owners Corp. supra, 258 AD2d at 155. See also Daly v City of New York supra, 227 AD2d at 433. All of plaintiff's opposition is based on supposition and hearsay. "While hearsay evidence may be utilized in opposition to a motion for summary judgment, such evidence is insufficient to warrant denial of summary judgment where it is the only evidence upon which the opposition to summary judgment is predicated". Narvaez v NYRAC, 290 AD2d 400, 400-401 (1st Dep't 2002). Thus, defendant did not owe a duty to plaintiff, and plaintiff has failed to raise a genuine issue of fact sufficient to preclude summary judgment such that defendant's motion for summary judgment dismissing plaintiff's action is granted.
Accordingly, it is
ORDERED that defendant's motion for summary judgment dismissing the complaint is granted and the complaint is hereby dismissed, and the Clerk of the Court is directed to enter judgment in favor of defendant; and it is further
ORDERED that within 30 days of entry, defendant shall serve a copy of this decision/order upon plaintiff with notice of entry.
This constitutes the decision/order of the Court. Dated: April 14, 2016