Opinion
16849-2004.
July 19, 2010.
LAW OFFICE OF PETER R, GARCIA, Stony Brook, NY, PLTF'S/PET'S ATTY.
ETTRICK CAMPBFLL, ESQ., (Deft.-DINKINS), Brooklyn, NY, MIRANDA SAMBURSKY SLONE, SKLARIN VERVENIOTIS, LLP, (Deft.-ARROW SECURTTY), Mineola, NY, WADE CLARK MULCAHY, (Defts.-PATHMARK BASSER-KAUFMAN), New York, New York, DEFTS/RESP'S ATTY.
Upon the following papers numbered I to 56 read on this motion for an order pursuant to CPLR Sec 3212, 3126 3215 Notice of Motion/Order to Show Cause and supporting papers 1-17; Notice of Cross Motion and supporting papers 18-27,28-37.38-41 Answering Affidavits and supporting papers 42-45.46-47,48-49 Replying Affidavits and supporting papers50-52,53-54,55-56 Other______; (and after hearing counsel in support and opposed to the motion) it is.
ORDERED that this motion by defendants PATHMARK STORES, INC. ("PATHMARK) and BASSER-KAUFMAN ASSOCIATES ("BASSER-KAUFMAN") seeking an order pursuant to CPLR Section 3212 granting summary judgment dismissing plaintiffs complaint and all cross claims against the defendants and the motion by defendant ARROW SECURITY INC. ("ARROW)) for an order pursuant to CPLR Section 3212 granting summary judgment dismissing plaintiffs complaint and all cross claims against "ARROW and granting judgment against defendant-BASSER-KAUFMAN" for contractual defense and indemnification, and the motion by plaintiff THERESA HALL ("HALL") for an order pursuant to CPLR Sections 3126 3215 granting a default judgment against defendant ASIA DINKINS ("DINSKINS") based upon "DINKINS" failure to appear for court conferences, and the motion by defendants "PATHMARK" and "BASSER-KAUFMAN" seeking an order pursuant to CPLR Sections 3126 3215 granting judgment dismissing all cross claims asserted by defendant "DINKINS" based upon "DINKINS" failure to appear for twelve court conferences are determined as follows:
On March 15, 2002 plaintiff "HALL" claims she was assaulted by defendant "DINKINS" after parking her car in a shopping center parking lot owned by defendant "BASSER-KAUFMAN. Defendant "PATHMARK" operated a grocery store and leased a portion of the premises from "RASSER-KAUFMAN" who hired defendant "ARROW" to patrol the parking lot.
Plaintiff's complaint alleges that defendants "PATHMARK" "BASSER-KAUFMAN" and "ARROW" negligently failed to provide adequate security in the parking lot where the incident occurred. Defendants motions each seek an order wanting summary judgment dismissing plaintiff's complaint and all cross claims claiming that defendants had no duty to protect "HALL" from an unforeseeable assault perpetrated by defendant "DINKINS". Plaintiff "HALL" and defendants "PATHMARK" and "BASSER-KAUFMAN" unopposed motions also seek judgment against defendant "DINKINS" based upon defendants more than 29 month failure to appear for court conferences beginning June 5, 2007 through November 10, 2009.
In support of both motions defendants "PATHMARK" and "BASSER-KAUFMAN" submit an affidavit from a "PATHMARK" loss prevention manager and an affidavit from a "BASSER-KAUFMAN" general operations and maintenance employee together with affirmations of counsel. Defendants claim that neither the landlord/owner ("BASSER-KAUFMAN") nor the tenant ("PATHMARK") owed a duty to protect plaintiff from an assault in the shopping center parking lot. Defendants assert that the altercation was unexpected and unforeseeable and argue that there is insufficient evidence submitted to show that defendants had prior notice of criminal activity in the area which could provide a basis for requiring extra security. Defendants claim that reasonable security was provided by the landowner "BASSER-KAUFMAN" in hiring "ARROW" to oversee activities in the parking lot. Defendants also claim that no amount of security could have prevented the "HALL/DINKINS" argument and fight. It is defendants position that the complaint and all cross claims must be dismissed since no viable claim has been asserted against the premises owner and tenant. Defendant "BASSER-KAUFMAN" also claims that it is not required to indemnify co-defendant "ARROW" since the contract's indemnification clause is ambiguous and since "ARROW" cannot be indemnified for (heir own negligence should the evidence prove that the parking lot security was inadequate.
In support of its motion for summary judgment, defendant "ARROW" submits attorney affirmations reciting relevant portions of me parties deposition testimony. Defendant claims that "ARROW"" contract with "BASSER-KAUFMAN" to provide parking lot security for the owner's benefit did not impose an additional duty to protect a third-patty (such as plaintiff) from injury. Defendant contends that "ARROW" owed "HALL" no independent duty to protect her from harm and claims that its security guards arc trained to immediately notify authorities after witnessing any emergency event. Defendant claims that "HALL's" injuries were the result of an unforeseen. criminal event. Defendant also claims that the "BASSER-KAUFMAN/ARROW" contract specifically recites that the owner must "indemnify, defend and hold Arrow harmless from any and all claims and lawsuits" and therefore judgment must be granted against "BASSER-KAUFMAN" for indemnification and reimbursement for defense costs.
In opposition to both motions, plaintiff submits an attorney's affirmation and claims that substantial issues of fact exist surrounding defendants failure to provide adequate security sufficient to require a plenary trial. Plaintiff claims that the defendants "BASSER-KAUFMAN" and "PATHMARK" (as owner and tenant) owed a duty to take reasonable measures to protect customers from harm of foreseeable criminal activity. Plaintiff claims that defendants were aware of prior criminal activity in the area based upon a crime study analysis perform by "PATHMARK" prior to opening the supermarket. Plaintiff also claims that police reports for the 18 month period before the incident confirm the area's high crime activity rate. It is plaintiff's position that under these circumstances defendants had a duty to provide additional security and significant factual questions exist concerning the defendants negligent failure to provide adequate security. Plaintiff also claims that "ARROW" failed to provide any relevant, admissible evidence to prove that a security officer reported the incident to authorities or was on site when the assault occurred. Plaintiff asserts that if a security guard had been present to notify authorities, "HALL" might not have sustained serious injuries to her arm since "DINKINS" bit "HALL" during a second altercation outside the store entrance. Plaintiff contends that "ARROW" assumed a duty to protect patrons on the premises which is revealed in "BASSER-KAUFMAN" "post orders" which state that "ARROW" guards are required to "call the police if they see criminal activity". Plaintiff claims that "HALL" was in the class of individuals required to be protected by the post order agreement and defendant "ARROW's" negligent failure to have a security guard present renders "ARROW" liable for "HALLY" injuries.
CPLR Section 3212(b) provides that a motion for summary judgment "shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admission." If an attorney lacks personal knowledge of the events giving rise to the cause of action or defense, his ancillary affidavit, repeating the allegations or the pleadings, without setting forth evidentiary facts, cannot support or defeat a motion for summary judgment (Olan v. Farrell Lines, Inc., 105 AD2d 653, 481 NYS2d 370 (1st Dept., 1984); affirmed 64 NY2d 1092, 489 NYS2d 884 (1985.). Moreover it is well settled that a party opposing a motion for summary judgment must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleading are real and capable of being established (Castro v. Liberty Bus Co., 79 AD2d J014,435 NYS2d 340 (2nd Dept., 1981)).
In order to establish tort liability, plaintiff must demonstrate the existence and breach of a duty owed to him by defendant (Palka v. Edelman, 40 NY2d 781. 390 NYS2d 393 (1976); Palsgraf v. Long Island Railroad Company, 248 NY 339 (I928); Prosser. 'Torts 4th Edition. Sections 30, 41, 42 53)). He must further demonstrate that defendant's acts or omissions which constituted such breach were a proximate cause of plaintiff's injuries (Sheehan v. City of New York, 40 NY2d 496, 387 NYS2d 92 (1976)).
The Court of Appeals in Nallan v. Helmsley Spear, Inc., 50 NY2d 507, 519, 429 NYSdd 606 (1980) set forth the applicable principles for a landowner's liability for acts committed by third persons on its premises:
"A possessor of land who holds it open to the public . . . is subject to liability to members of the public while they are upon the land . . . for physical harm caused by the . . . intentionally harmful acts of third persons . . . and by the failure of the possessor to exercise reasonable care to —
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm or otherwise to protect them against it (citing Restatement Torts 2nd, Section 344).
Of course, a possessor of land, whether he be a landowner or a leaseholder. is not an insurer of the visitor's safety. Thus, even where there is an extensive history of criminal conduct on the premises, the possessor 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 a likelihood of conduct on the part of third persons . . . which is likely to endanger the safety of the visitor (citing Restatement Torts 2nd, Sec. 344, Comment f). Only if such conditions are met may the possessor of land be obliged to "take precautions . . . and to provide a reasonably sufficient number of servants to afford reasonable protection."
In Jacqueline S. v. City of New York, 81 NY2d 288, 294, 598 NYS2d 160 (1993) the Court of Appeals explained that Nallan (supra.) cast foreseeability "in terms of past experience that there is a likelihood of conduct on the part of third persons. . . . which is likely to endanger the safety of the visitor." The Court stated that foreseeability "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."
Under certain Circumstances a special relationship exists between an injured party and a defendant in which the law imposes a special duty for the benefit of the innocent party injured as a result of the action or inaction of another individual. Such special duties may be imposed by statute (see Labor Law Sections 240 241) or may result from the relationship between the parties as, for example, where a municipality may be found liable for failing to provide adequate protection for a police informant (see Schuster v. City of New York, 5 NY2d 75, 180 NYS2d 265 (1958)).
There exists no common-law duty for a security company to protect a party injured during an altercation on private property. Moreover, an injured party may not recover as a third-party beneficiary for failure to perform a duty imposed by a contract between a landowner and the security company absent a contractual provision clearly indicating that the parties intended to confer a direct benefit on the third party to protect her from injury (Buckley v. J.B.I. Security Service Inc. et al., 157 AD2d 645, 549 NYS2d 744 (2nd Dept., 1990); Murshed v, New York Hotel Trades Council, 71 AD3d 578, 898 NYS2d 25 (1st Dept., 2010); Anokye v. 240 East 175 th Street Housing Development Fund Corporation, 16 AD3d 287, 792 NYS2d 417 (1st Dept., 2005); Rudel v. National Jewelry Exchange Company, 213 AD2d 301, 623 NYS2d 787 (1st Dept., 1995)).
"HALL" claims to have been assaulted by 'TONKINS" immediately after parking her car. The three minute confrontation consisted of two separate incidents: the initial scuffle near the rear of plaintiffs parked car; and a second assault near the grocery store entrance which involved "DINKINS" Wielding a bat or club. Plaintiff's theory of recovery against the landowner ("BASSER-KAUFMAN") and the lessee ("PATHMARK") is predicated upon the claim that both defendants breached a duty owed to her in failing to provide adequate security in a high crime area. Plaintiff submits copies of police reports during the 18 month period prior to the altercation and claims that defendants were aware of the criminal activity and were therefore required to provide reasonable protection to the public to prevent attacks such as the one suffered by the plaintiff which were reasonably foreseeable.
No basis exists to find either the landowner ("BASSER-KAUFMAN") or the lessee ("PATHMARK)) liable for the injuries sustained by the plaintiff The fight between "HALL" and "DINKINS" was a random act of unforeseeable violence. There is no evidence that supervision could have anticipated the altercation or prevented such behavior. Moreover defendants have submitted evidence that under the circumstances they provided reasonable security by hiring "ARROW" to patrol and report problems at the 13 store patron parking lot.
Similarly no basis exists to find the security company ("ARROW") liable for plaintiffs injuries. The "BASSER-KAUFMAN/ARROW" agreement was entered into for the benefit of the landowner and the security company and conferred no special protective duty enforceable by third party patrons (see Rudel v. National Jewelry Exchange Company, supra.). Defendant "ARROW's" motion seeking an order dismissing the complaint and all cross claims against it must be granted.
Defendant's motion seeking reimbursement for defense costs from defendant "BASSER-KAUFMAN" must also be granted. The "BASSER-KAUFMAN/ARROW" contract provides that "BASSER-KAUFMAN" is obligated to indemnify, defend and hold harmless "ARROW" from any and all claims and lawsuits including payment of all damages, expenses, costs and attorney's fees except due to the negligence on the part of Arrow . . .". Based upon this provision defendant "ARROW" is entitled to reimbursement from "BASSER-KAUFMAN" for costs related to defending this action.
Finally plaintiff "HALL's" and defendant "BASSER-KAUFMAN's" unopposed applications seeking to strike defendant "DINKINS" answer based upon defendant's default is granted. Accordingly it is
ORDERD that defendants ("BASSER-KAUFMAN" and "PATHMARK") motion for an order pursuant to CPLR Section 3212 is granted to the extent that the complaint is hereby dismissed. and it is further
ORDERED that defendant's ("ARROW") motion for an order pursuant to CPLR Section 3212 is granted. The complaint and all cross claims against "ARROW" are hereby dismissed, and it is further
ORDERED that defendant "ARROW" is granted judgment against defendant "BASSE-KAUFMAN" for defense costs associated in defending this action pursuant to the terms of the contract entered into by the parties, and it is further
ORDERED that plaintiffs ("HALL)) motion and defendants ("BASSER-KAUFMAN" "PATHMARK") motion each seeking an order pursuant to CPLR Sections 3126 3215 granting judgment against defendant "DINKINS" is granted. The compliance/certification conference requirement is hereby waived. Upon the filing of a note of issue, certificate of readiness and payment of all required fees a trial on the issue of damages to be awarded shall be scheduled by the Calendar Control Part. Plaintiff shall file a note of issue and place this action on the trial calender within sixty days of the date of this order with notice of entry.