Opinion
No. 20576/08.
2013-01-25
Michael WHEELER, Michael Thompson an infant by his mother and natural guardian, Tawana Thompson, individually and Edie Thompson, Plaintiffs, v. The ARKER COMPANIES, Sea Park East Housing Development Corporation Fund, John Doe Security Company, John Doe Security Guard, and John Doe (the names being fictitious and currently unknown). FJC Security Service, Inc., Defendants.
The Rawlins Law Firm, PLLC, New York, for Plaintiff. Nicholas Cardescia, Esq., Ahmuty Demers & McManus, Esqs., Albertson, for Defendant.
The Rawlins Law Firm, PLLC, New York, for Plaintiff. Nicholas Cardescia, Esq., Ahmuty Demers & McManus, Esqs., Albertson, for Defendant.
DAVID I. SCHMIDT, J.
Upon the foregoing papers, defendants Arker Companies and Sea Park East Housing Development Fund Corporation (collectively Arker) move for summary judgment dismissing the action against them, co-defendant FJC Security Service, Inc. (FJC) cross-moves for the same relief and plaintiff Michael Wheeler cross-moves for partial summary judgment on liability against all defendants.
Background and Procedural History
On June 12, 2005, plaintiff Michael Wheeler and plaintiffs Michael Thompson and Tawana Thompson and their associated family and friends were physically fighting throughout the day. These fights culminated in an attack by Michael Wheeler and his family and friends on the Thompsons in the lobby of the Sea Park apartments where all the plaintiffs resided. Each of the plaintiffs testified that the door locks to the apartment building were not working at the time of the incident and had been broken for some time. Tawana Thompson tried to keep her assailants at bay by holding the door to the building closed. During this time she pleaded with the unarmed security guard at the scene to intervene or call the police. She alleges that the security guard did nothing in response to her requests. After the assailants managed to enter the lobby, Michael Thompson was injured, allegedly by Michael Wheeler. A short time later Michael Wheeler was stabbed in the back, also in the lobby, by an assailant he never saw. Another tenant of the building did see the assailant, and the police arrested Dwane Elcock, Tawana Thompson's boyfriend, for the assault but there is no submitted evidence that he was convicted of the alleged crime.
Michael Wheeler commenced this action against Arker by filing a summons and complaint on April 7, 2007. Michael Thompson, Tawanda Thompson and Edie Thompson
commenced a separate action against Arker and FJC on July 11, 2008. Arker commenced a third-party indemnification action against FJC on November 12, 2009. Justice Francois Rivera's February 9, 2009 order consolidated the Wheeler and Thompson actions.
Edie Thompson has since been dismissed from the action by stipulation.
Discussion
“The elements of a common-law negligence cause of action are a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting therefrom” (Jiminez v. Shahid, 83 AD3d 900, 901 [2011]lv denied 18 NY3d 30 [2012] ). “[A] landlord has a duty to maintain minimal security measures, related to a specific building itself, in the face of foreseeable criminal intrusion upon tenants” (Miller v. State of New York, 62 N.Y.2d 506, 513 [1984];see also Tarter v. Schildkraut, 151 A.D.2d 414, 415 [1989]lv denied74 N.Y.2d 616 [1989] ). It is beyond cavil that having a functional lock on the entrance to an apartment building is a duty that is owed to the tenants of the building ( see Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 551–552 [1998] ). Plaintiffs have alleged that the front door locks of the building were broken and that there was no bar to strangers entering the building for some time. On a motion for summary judgment we must give every favorable inference to the non-moving party ( see Ruiz v. Griffin, 71 AD3d 1112, 1115 [2010] ). Therefore, we must accept, for purposes of this motion, that the front door locks were not working. Arker argues that the action should be dismissed because, even if the locks to the front door were broken, the assailants of both Michael Thompson and Michael Wheeler were residents of the building or guests of residents of the building, i.e., Michael Wheeler and Dwane Elcock, respectively. In premises security cases a “plaintiff can recover only if the assailant was an intruder” (Burgos, 92 N.Y.2d at 551) because “even a fully secured entrance would not keep out another tenant, or someone allowed into the building by another tenant” ( id. at 550–551).
As for the Thompsons, we must dismiss their causes of action against defendants that invoke the theory of the broken lock on the front door. Both Michael Thompson and Tawana Thompson identified Michael Thompson's assailants as Michael Wheeler and his friends and family. Because Michael Wheeler was a resident of the building, and his friends and family constitute guests of a building resident, the fact that there was not a functioning lock on the front door was not the proximate cause of Michael Thompson's injuries.
As for Michael Wheeler, he testified that he never saw his assailant and that the assailant was never identified. To contradict this statement, Arker notes that Mr. Wheeler states in his deposition that his friends saw the assailant and described him to the police who, in turn, arrested Dwayne Elcock.
Arker also submitted the arrest report of Dwayne Elcock for the assault. The arrest report itself is inadmissible hearsay. The report in any event does not identify who informed the arresting officer that Dwayne Elcock was the assailant ( see Hazzard v. Burrowes, 95 AD3d 829, 831 [2012];Noakes v. Rosa, 54 AD3d 317, 318 [2008] ). Moreover, the report only establishes that Mr. Elcock was arrested for that assault, it certainly does not establish that he was the actual assailant. Anker argues that the standard for a premises liability case is whether it is “more likely or more reasonable than not that the assailant was an intruder who gained access to the premises through a negligently maintained entrance” ( Burgos, 92 N.Y.2d at 551), and that the police report makes it more likely than not that the assailant was not an intruder. However, that standard is what must be shown by plaintiff at trial ( id.). Accordingly, the issue whether it is more likely than not that the assailant was an intruder is an issue of fact that cannot be resolved on this motion.
Defendants argue that Michael Wheeler contradicted himself by stating in his affidavit that his assailant was never identified when he claimed in his deposition that his friends had seen the assailant and described him and that the police had informed him that someone had been arrested for the crime. The statements, while seemingly contradictory, are not necessarily unreconcilable. Mr. Wheeler's friends never identified the assailant by name and while the police arrested Mr. Elcock there is no further indication that he was identified as the attacker.
Michael Wheeler's summary judgment cross motion is similarly denied. The cross motion, while late, raises the identical issues raised in Arker's motion and therefore may be considered (Das v. Sun Wah Rest., 99 AD3d 752, 754 [2012] [“A court may properly consider an untimely summary judgment motion, provided the late motion is based on nearly identical grounds as a timely motion”] [internal quotation marks, brackets and citation omitted]; see also Grande v. Peteroy, 39 AD3d 590, 592 [2007] ). Nonetheless, the motion must be denied because, as stated above, the question whether Michael Wheeler's assailant was a tenant or a guest of a tenant or an intruder is an issue of fact.
Defendant FJC's cross motion is also untimely, and insofar as it raises the same issues as raised in Arker's motion, it should be granted in part and denied in part for the same reasons applicable to Arker's motion. FJC, in its cross motion, also raises an issue not raised by Arker, namely that FJC may not be held liable for injuries to plaintiffs because plaintiffs are not intended third-party beneficiaries of the contract between Arker and FJC. However, this cross motion's tardiness prevents the court from considering the separate, unintended third-party beneficaries argument. Furthermore, the cross motion should be denied even if the court were to address the issue on its merits. FJC has proffered no evidence detailing its security guards' duties towards building residents. Accordingly, it is an issue of fact whether the building residents are intended third-party beneficiaries of the contract ( see Kotchina v. Luna Park Hous. Corp., 27 AD3d 696 [2006];Flynn v. Niagara Univ., 198 A.D.2d 262, 263 [1993] [“The contract does not specify the duties of the security guards, nor is there any language which would limit the duties of the guards to protection of property and not students”] ).
Finally, there are questions of fact whether the respective security guards on duty in the lobby at the time of both attacks could have or should have done more to prevent the attacks, which thus makes summary judgment inappropriate. Tawana Thompson testified that she pleaded with the guard to call the police and that he did nothing. Defendants argue that had there been a call to the police they would not have arrived in time to avert the attack. Again, this presents a question of fact making summary judgment inappropriate. FJC also argues that the security guard was not obligated to intervene, but as noted, it provided no evidence of the security guard's duties and obligations. In addition, the statement by FJC's counsel that the security guards were not required to intervene was not made by a knowledgeable person ( seeCPLR 3212 [b], and unlike other cases, no submitted evidence supports such a statement ( cf. Maragos v. Sakurai, 92 AD3d 922, 923 [2012] ).
Accordingly, it is
ORDERED that Arker's summary judgment motion and FJC's summary judgment cross motion is each granted as against any cause of action by Michael Thompson and Tawana Thompson regarding the failure to maintain door locks and otherwise denied; and it is further
ORDERED that Michael Wheeler's summary judgment cross motion is also denied.
This constitutes the decision and order of the court.