Opinion
May 31, 1994
Appeal from the Supreme Court, Richmond County (Sangiorgio, J.).
Ordered that the order is modified, on the law, by deleting the provision thereof which denied the branch of the motion of the defendant Time-Out Family Amusement Center, Inc., for summary judgment dismissing the complaint insofar as it is asserted against it, and substituting therefor a provision granting that branch of the motion and dismissing the plaintiff's complaint insofar as it is asserted against the defendant Time-Out Family Amusement Center, Inc.; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiffs brought this action to recover for personal injuries the infant plaintiff suffered as a result of being assaulted by a group of youths who were loitering in the corridor of the Staten Island Mall, outside the Time-Out video arcade, and outside the entrance of the mall.
We find that the infant plaintiff's injuries were not proximately related to the acts or omissions of the defendant Time-Out Family Amusement Center, Inc. (hereinafter Time-Out) (see, Seetram v. Vanderveer Assocs., 184 A.D.2d 687). Further, there was no common-law duty to protect the infant plaintiff, and, even assuming that the infant plaintiff claimed status as an intended third-party beneficiary of the lease between the defendants, since that lease explicitly negated any intent to confer contractual rights upon third parties, Time-Out did not assume a duty of care to prevent foreseeable harm to the infant plaintiff (see, Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d 220, 226). However, the cross claims of the defendant Rouse SI Shopping Center, Inc., the shopping mall owner, against Time-Out are not dismissed, since Time-Out, as the tenant, may have some obligation to the shopping mall, as landlord, under the terms of the lease.
On the other hand, there remains a question of fact as to whether the shopping mall owner owed the infant plaintiff a duty to take minimal precautions to protect him from the reasonably foreseeable criminal acts of third parties (see, Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507, 519; see also, Provenzano v Roslyn Gardens Tenants Corp., 190 A.D.2d 718, 720). There is evidence that the shopping mall owner was aware of the continuing problem of "gangs" of youths loitering around the mall entrance and outside the Time-Out video arcade, which was in the immediate vicinity of the entrance, and that these youths frequently became involved in violent altercations. Further, the record indicates that at least one person who had previously been ejected by mall security from the premises for his involvement in other violent altercations was also involved in the assault upon the infant plaintiff. Copertino, J.P., Santucci, Friedmann and Goldstein, JJ., concur.