Opinion
24860/02.
Decided July 6, 2005.
Background
Plaintiff, Luis Nunez, a temporary occupant of an apartment located at Defendants' premises, seeks to recover damages for personal injuries allegedly sustained when he was assaulted at the apartment he was occupying at 14 Caryl Avenue, Yonkers, New York ("the Premises") as a result of the negligent conduct of Defendant EUDY NOVAS, the Superintendent of the Premises. Defendants CARYL BROADWAY, INC., ("BROADWAY") is the owner of the Premises, and OK MANAGEMENT, INC., ("MANAGEMENT") manages the Premises.
Plaintiff maintains three causes of action against Defendants. In his first cause of action, Plaintiff contends that Defendant NOVAS was negligent in allegedly "ushering" assailants into the apartment and failing to render assistance to Plaintiff during the assault. Plaintiff alleges that Defendants BROADWAY and MANAGEMENT are vicariously liable for NOVAS' negligence. Secondly, Plaintiff alleges that his injuries were also caused by Defendants BROADWAY and MANAGEMENT's negligence in their hiring and supervision of Defendant NOVAS. Lastly, Plaintiff contends that Defendant NOVAS allegedly supervised and directed the subject assault and battery while acting as an agent for Defendants BROADWAY and MANAGEMENT.
Plaintiff NUNEZ states that he was apartment-sitting for a friend, nonparty Gustavo Rosa, the tenant of an apartment at the Premises. Gustavo Rosa allegedly admitted that he deals "ounces" and uses the apartment as a "safe house".
( See "Yonkers Police Department Supplementary Report" at Defendant's Exhibit "L", p. 3). According to Plaintiff, on September 14, 2001, Defendant NOVAS knocked on his door, identified himself as the Superintendent, and stated that he had mail for Plaintiff. Although Plaintiff acknowledges this was the first time someone came to deliver mail to the apartment, he nevertheless opened the door to the apartment after looking through the peephole. ( See Plaintiff NUNEZ'S EBT, p. 33, 38-39). Plaintiff was assaulted by three assailants, while the Superintendent allegedly witnessed the attack for about five minutes. ( See Plaintiff NUNEZ'S EBT, p. 39-40, 42, 45). Plaintiff was severely beaten by the assailants.
Landlord's Liability
"Landlords have 'a common-law duty to take minimal precautions to protect tenants from foreseeable harm,' including a third-party's foreseeable conduct." Burgos v. Aqueduct Realty Corp., 92 NY2d 544, 548, 706 NE2d 1163, 684 NYS2d 139 (1998) (quoting Jacqueline S. v. City of New York, 81 NY2d 288, 293-294, 614 NE2d 723, 598 NYS2d 160, [1993] rearg denied 82 NY2d 749, 622 NE2d 308) (emphasis added); Mason v. U.E.S.S. Leasing Corp., 96 NY2d 875, 878, 756 NE2d 58, 730 NYS2d 770 (2001). However, landlords "are not the insurers of a visitor's safety." Maheshwari v. City of New York, 2 NY3d 288, 294, 810 NE2d 894, 778 NYS2d 442 (2004). "[T]he possessor [of land] cannot be held to a duty to take protective measures unless it is shown that he either knows or has reason to know from past experience 'that there is likelihood of conduct on the part of third persons . . . which is likely to endanger the safety of the visitor.'" Nallan v. Helmsley-Spear, Inc., 50 NY2d 507, 519, 407 NE2d 451, 429 NYS2d 606 (1980) (quoting Restatement, Torts 2d, § 344, Comment f) (emphasis added).
"Whether knowledge of criminal activities . . . can be sufficient to make injury to a person . . . foreseeable, must depend on the location, nature and extent of those previous criminal activities and their similarity, proximity or other relationship to the crime in question." Jacqueline S. v. City of New York, 81 NY2d at 295 (emphasis added). "Such liability can arise only where the owner knew or should have known of the probability of conduct on the part of the trespasser which was likely to endanger the safety of those lawfully on the premises." Buckeridge v. Broadie, 5 AD3d 298, 299, 774 NYS2d 132 (1st Dept. 2004) (emphasis added).
Summary Judgment Standard
Defendant's summary judgment motion will be granted if the plaintiff fails to raise an issue of fact as to foreseeability and proximate cause. See Maheshwari v. City of New York, 2 NY3d at 293. "[W]here the moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do." Zuckerman v. City of New York, 49 NY2d 557, 560, 404 NE2d 718, 427 NYS2d 595 (1980) (emphasis added). "[For plaintiff to defeat the defendant's summary judgment motion, plaintiff] was required to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact." William Iselin and Co. v. Landau, 71 NY2d 420, 425, 522 NE2d 21, 527 NYS2d 176 (1988) (quoting Zuckerman v. City of New York, 49 NY2d at 562) (emphasis added).
Discussion
Plaintiff has not presented sufficient proof evidencing Defendants' awareness of criminal activity in the building prior to the subject incident, and the relationship of such activity to the assault that occurred. Plaintiff tenders the "Yonkers Police Department Premises History" for the subject building ( See "Premise History at 14 Caryl Av in YNK" at Plaintiff's Exhibit "E"). Plaintiff alleges that the two-page chart is a history of telephone calls made to the police concerning criminal activities regarding the subject premises. However, the document is not certified, nor identified by any police authority. Therefore, there is no proof of its authenticity. Plaintiff also failed to provide police testimony to explain the codes for the alleged criminal activity involved. This Court will not speculate as to the meaning of these codes. Standing alone, the document is inadmissible, insufficient evidence to raise an issue of whether the subject assault was foreseeable by Defendants.
Under the circumstances presented, it cannot be said that Defendants did not have in place security measures. "The law does not require the defendants to provide the optimal or most advanced security system available, but only reasonable security measures." Tarter v. Schildkraut, 151 AD2d 414, 415, 542 NYS2d 626 (1st Dept. 1989), appeal denied, 74 NY2d 616, 549 NE2d 152 (1989).
Defendants provided working locks and an intercom system to limit access to the Premises. Plaintiff states that the front door locks were functional on the day of the incident. ( See Plaintiff NUNEZ'S EBT, p. 34). There was also an intercom system to restrict access. ( See Defendant NOVAS' EBT, p. 14). Plaintiff does not submit any evidence of a negligently-maintained entrance.
The cases that Plaintiff cites are inapposite. In those cases, there was a negligently-maintained entrance, which raised a triable issue as to foreseeability: Burgos v. Aqueduct Realty Corp., 92 NY2d 544, 548-552, 706 NE2d 1163, 684 NYS2d 139 (1998) (no functioning locks, and back door didn't fit frame and remained open); Jacqueline S. v. City of New York, 81 NY2d 288, 292, 614 NE2d 723, 589 NYS2d 160 (1993) (despite numerous incidents of rape and forcible robberies, defendant did not lock doors nor provide security personnel); Brewster v. Prince Apartments, Inc., 264 AD2d 611, 611-613, 695 NYS2d 315 (1st Dept. 1999), appeal denied, 94 NY2d 762, 729 NE2d 708 (2000) (defective front door); Kellman v. 45 Tiemann Associates, 87 NY2d 871, 872, 662 NE2d 255, 638 NYS2d 937 (1995) (unguarded hatchways in fire escape landings).
Plaintiff argues that Defendants had a duty to control criminal conduct of third-parties on the Premises, which assumes that Defendants BROADWAY and MANAGEMENT had an opportunity to control conduct, or were reasonably aware of the necessity for such control. However, Plaintiff fails to cite cases where this duty is extended to landlords. This duty is currently owed by public entities to their guests. Plaintiff cites various cases in an attempt to convince this Court to extend this duty to Defendants. However, such cases are distinguishable because they involve defendants who are public carriers or public establishments, who invite the public to use their facilities. See Crosland v. New York City Transit Authority, 68 NY2d 165, 498 NE2d 143, 506 NYS2d 670 (1986) (public carrier); Rivera v. 21st Century Restaurant, 199 AD2d 14, 604 NYS2d 106 (1st Dept. 1993) (restaurant); Pantages v. L.G. Airport Hotel Associates, Inc., 187 AD2d 273, 589 NYS2d 426 (1st Dept. 1992) (motel); Dollar v. O'Hearn, 248 AD2d 886, 670 NYS2d 230 (3rd Dept. 1998) (hotel); Panzera v. Johnny's II, 253 AD2d 864, 678 NYS2d 336 (2nd Dept. 1998) (bar); Sahr v. Schmidli, 236 AD2d 785, 653 NYS2d 468 (4th Dept. 1997) (bar); Smith v. Blue Mountain Inn, 255 AD2d 920, 680 NYS2d 386 (4th Dept. 1998) (bar).
Plaintiff cites two other cases which are also inapplicable to the situation at hand, because in those cases, the scope of defendant's liability was dependent on whether the conduct of its employee was reasonably foreseeable, or whether the defendant was reasonably aware of the necessity to control the third-party's conduct. See N.X. v. Cabrini Medical Center, 97 NY2d 247, 765 NE2d 844, 739 NYS2d 348 (2002) (assailant was employee of defendant hospital); Mangione v. Dimino, 39 AD2d 128, 332 NYS2d 683 (4th Dept. 1972) (plaintiff guest was injured by unruly guests at pool party at defendant's home).
In contrast, in the case at bar, Defendants, own, manage, and maintain a residential building. Defendants restrict public access to the Premises through the use of door locks and an intercom system. Plaintiff does not allege that the assailants are employed by Defendants. Any allegation that Defendants were connected with the assailants would be mere speculation, which is insufficient to raise a triable issue of fact. ( See Nonparty Perez's EBT, p. 20, 27). Moreover, Plaintiff's statement that he thought Defendant NOVAS would call the police, is inconsistent with any allegation that Defendants were affiliated with the assailants. ( See Plaintiff NUNEZ'S EBT, p. 39, 44, 50, 59). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient [evidence]." Zuckerman v. City of New York, 49 NY2d at 562. Plaintiff's cases do not support his argument that Defendants, in the case at bar, owed a duty to this Plaintiff to control the conduct of the assailants who injured him.
In any event, Plaintiff's injuries were not the result of BROADWAY or MANAGEMENT's conduct, but were caused by an independent, intentional criminal act. The assailants targeted the subject apartment for money. They came prepared with a machete, pliers, and plastic ties, which they used to assault Plaintiff as they demanded money from him. ( See Plaintiff NUNEZ'S EBT, p. 44-46, 58).
To establish a prima facie case of proximate cause, a plaintiff must show "that the defendant's negligence was a substantial cause of the events which produced the injury. Where the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed. In such a case, liability turns on whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence." Maheshwari v. City of New York, 2 NY3d at 295 (quoting Derdiarian v. Felix Contracting Corp., 51 NY2d 308, 315, 414 NE2d 666, 434 NYS2d 166). An intervening act may break the causal nexus when it is "extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct." id. The assault by intruders was an unforeseeable, intervening force which severed the causal connection between the alleged negligence of NOVAS and the owner and manager of the property.
With regard to Plaintiff's cause of action for negligent hiring, Plaintiff failed to produce evidence showing Defendants BROADWAY or MANAGEMENT knew or should have known of NOVAS' criminal inclinations (if any), which would have made this incident foreseeable. In general, "[a]n employer is under no duty to inquire as to whether an employee has been convicted of crimes in the past." Yeboah v. Snapple, Inc., 286 AD2d 204, 205, 729 NYS2d 32 (1st Dept. 2001) (quoting Amendolara v. Macy's New York, 19 AD2d 702, [702, 241 NYS2d 39 (1st Dept. 1963)]). "Liability will attach on such a claim only when the employer knew or should have known of the employee's violent propensities." Yeboah v. Snapple, Inc., 286 AD2d at 205 (quoting Detone v. Bullit Courier Service, Inc., 140 AD2d 278, [280-281, 528 NYS2d 575 (1988), appeal denied, 73 NY2d 702, 534 NE2d 328 (1988)]).
Plaintiff's cause of action for assault and battery must also be dismissed, because Plaintiff failed to make a showing that Defendant NOVAS acted in the scope of his employment when allegedly committing the assault and battery, nor presented evidence that the assault and battery was condoned by Defendants BROADWAY and MANAGEMENT. "An employer cannot be held vicariously liable for an alleged assault where the assault was not within the scope of the employee's duties, and there is no evidence that the assault was condoned, instigated or authorized by the employer." Yeboah v. Snapple, Inc., 286 AD2d at 204-205 (citing Kwak v. Wolfenson, 258 AD2d 418, [418, 686 NYS2d 381 (1st Dept. 1999)]).
Conclusion
"The grant [of summary judgment] means that the court . . . has found that there is no substantial issue of fact in the case and therefore nothing to try." Siegel, NY Practice, § 278 (4th Ed. 2005). CPLR 3212 (b) also provides: "The motion shall be granted if, upon all the papers and proof submitted, the . . . defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party."
Accordingly, Defendants' Motion for summary judgment is granted.This constitutes the decision and order of this Court.