Opinion
April 16, 1999
Congdon, Flaherty, O'Callaghan, Eid, Donlon, Travis Fishlinger, Garden City, for Fleet Bank, defendant.
Hoey, King, Perez, Toker, Epstein, New York City, for UOB Realty (USA) Limited Partnership, and another, defendants.
Harms, Della, Jacono Finneran, New York City, for Interior Construction Company, defendant.
Gordon Silber, P. C., New York City, for Effective Security Systems, Inc., defendant.
Lawrence B. Newman, New York City, for Mark Moskal and another, plaintiffs.
DECISION and ORDER
Defendant Fleet Bank ("Fleet") leases parts of the mezzanine, ground floor, and basement areas of 592 Fifth Avenue, at 48th Street in Manhattan. According to the floor plans provided with the exhibited lease, and as gleaned from the deposition testimony, the Court understands the layout to be essentially as follows: Fleet maintains its branch on the ground floor, which is accessible directly from a street entrance, or from a door inside the lobby of the eleven story building. Within the branch is a door leading to a stairwell down into the vault area is the basement. Only staff is permitted to access this stairwell. Outside the branch, in the lobby, are three elevators and, directly across the lobby from the elevators, a door to a stairwell. This stairwell also leads downstairs to the basement, but opens onto a long corridor, at the end of which is the door to the vault. The elevators all access the top floor down to the basement but, unlike the lobby stairs, the elevators place one directly in front of the vault door. Therefore, unless one utilizes the stairwell within the bank branch, someone seeking to visit the vault had to present him or herself at the glass partitioned door and, after displaying appropriate identification, one of the attendants would provide access.
A block south of the bank is probably one of the world's largest consumer markets for diamonds, watches and other stones. A single block, Forty Seventh Street between Fifth and Sixth Avenues, is crowded with over 2600 gold and precious gem merchants who handle some 90% of the diamonds which come into this nation.
For more information, visit the web site, "47th Street — New York Diamond and Jewelry District", www.47th-street.com. See also www.diamond — district.com.
Plaintiff Mark Moskal ("Moskal") is one of those jewelers. Moskal had rented a safe deposit box in Fleet's vault, located in the bank's basement, which he regularly visited to deposit or retrieve jewelry and cash. On April 18, 1996 he visited the vault twice in the morning and, at approximately 2:30 p.m., Moskal returned once again. As he approached the lobby elevators but found that the renovation work being done that afternoon was blocking the elevators' entrance. According to Moskal, a security guard told him to take the stairway as an alternative means to gain access to the vault. He did so.
Moskal entered the basement and was halfway down the corridor when he was confronted by a person who slapped him, held a knife to his neck, and robbed him of his valuables. As a result of this encounter Moskal suffered serious physical and emotional injuries, as well as loss of property.
Moskal and his wife are suing Fleet Bank, UOB Realty (USA) Limited Partnership ("UOB") and Axiom Real Estate ("Axiom"), the building owner and managing agent, respectively, Effective Security Systems, Inc. ("Security"), the company which provided security guards for the building, and Interior Construction Company ("Interior"), the contractor performing the renovation work inside the bank lobby. The plaintiffs allege that the defendants' failed to protect Mr. Moskal against a forseeably dangerous condition that led to his assault and robbery. Specifically, Moskal alleges; that UOB and Axiom were negligent in hiring inadequate security guards, that Fleet was negligent in supervising the security guards and failing to take proper precautions or make adequate provisions for his safe access to the vault, that Security was negligent because it was Security employee who had directed Moskal to a position of danger and failed to take adequate precautions to safeguard him. Finally, Moskal alleges that Interior was negligent by blocking the elevators with its scaffolding and disrupting the elevator service to the vault area without taking any precautions to ensure Moskal's safety in taking an alternate route.
UOB and Axiom argue that as landlord and managing agent of the premises, they cannot be held liable for Moskal's injuries because the probability of criminal conduct was not reasonably foreseeable. They point to Moskal's own deposition that he had been a patron of Fleet for approximately 20 years and had never experienced similar incidents, that he did not know of any similar incidents to other patrons, and that he had been to the bank twice the very same day and did not notice anything usual. Thus, UOB and Axiom claim Moskal has failed to raise an issue of fact as to whether the security measures were appropriate and whether the incident was reasonably foreseeable.
They also argue that, pursuant to Fleet's lease, Fleet was required to purchase insurance to protect them against claims such as these. However, by their reply papers, UOB and Axiom have withdrawn that portion of their motion seeking "conditional summary judgment against Fleet Bank."
For its part, Fleet also contends that it had no legal duty to protect against an assault that could not have been reasonably anticipated and was "unusual, abnormal, sudden and unexpected". Fleet admits that there were two occasions in which "hold up" notes were passed to tellers on the first floor of the bank but, other than these undated incidents, there had been no prior criminal activity within the subject premises, let alone the basement hallway. Fleet also argues that Plaintiff's assault could not have been guarded against because Moskal's deposition testimony established that the incident took less than 2 1/2 minutes, during which time Moskal saw no one else in the hallway.
Security, similarly, claims that it did not create an unreasonably increased risk for Moskal. Through the deposition of A. Gus Avena, former vice-president and account executive, Security states that its contractual obligations were limited to providing, around-the-clock, one unarmed, uniformed "guard" available "to report conditions of fire, theft, vandalism and trespassing" The guard was posted in the lobby of the building and the guard had no responsibility for the basement area. Thus, Security argues, it owed no duty to Moskal because he was not a third-party beneficiary of its contract with the building. And since the contract did not extend to the vault area, there could be no detrimental reliance by Moskal.
Finally, Interior argues that, as the contractor performing renovations on the street floor, it was under no duty to protest Moskal from the criminal acts of third persons in the basement, that the crime was unforeseeable, and that there was no proximate cause.
Moskal alleges that questions of fact as to foreseeability of the robbery and the parties' respective duties preclude summary disposition. Moskal points out that the building manager, Mark Domiczek, testified that throughout April, 1996 the lobby and elevators were undergoing extensive renovation, which prompted changes to the door locks of the lobby stairwell, that this door was unlocked throughout the period of construction so that workers could access the basement and put equipment on the stairway landing. The security desk was removed from its usual position in front of the door to the stairwell. There were no signs on the door warning customers not to descend the stairs because security was relied upon to warn customers of the danger in using the staircase. However, despite the security presence, Domiczek stated that customers were known to occasionally gain access to the vault area by means of the staircase.
Fleet's Vice President, Ronald Coccaro, was deposed and confirmed that, although vault customers were supposed to use the elevator to access the vault area, the bank was aware that, on occasion, customers would use the stairwell. Coccaro was concerned about customers using the stairwell because it was steep and narrow and because it was meant to be used by employees only. Coccaro also stated he knew that at times during the renovation period the door was propped open with construction materials on the landing, increasing the danger of using the stairs. And, as Security's former vice president, Mr. Avena, testified, "When people came in to utilize the vault facilities, [the] guards instructed those people to use the elevator and not the staircase up and down." Security had been given instructions to follow this "cardinal rule" by both the bank and "the building people". Thus, in addition to their customary, general responsibilities, the security guards were under a specific affirmative duty to warn customers not to use the stairwell.
Accordingly, Moskal contends, by wholly regarding and violating the known policy, defendants thereby created a risk of danger and that the robbery could have been prevented if Security had directed him to take the elevator. Since Security had the duty to keep customers like Moskal from using the stairwell, particularly during the renovation period, Security placed Moskal in a more vulnerable position. The preventability of the incident, he argues, is a strong factor in whether or not defendants' alleged negligence was a proximate cause of his injuries. Moskal also contends that because, as Fleet's vice president acknowledged, jewelry dealers made up a large number of the vault customers, this rendered the bank particularly attractive to criminals and Fleet was on notice of this.
DISCUSSION
An owner or possessor of land has a common-law duty to maintain the public areas of the property in a reasonably safe condition for those who use it. Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 519-520 (1980). This duty includes the obligation to maintain minimal security precautions to protect users of the premises against injury caused by the reasonably foreseeable criminal acts of third persons. See Miller v. State of New York, 62 N.Y.2d 506 (1984). However, the owner or possessor is not an insurer of safety of those who use the premises and it cannot, even when there is a history of crime committed on the premises, be held to a duty to take protective measures unless it is shown that it knows or, from past experience, has reason to know, that there is a likelihood of third-party conduct likely to endanger the safety of those using the premises. Nallan v. Helmsley-Spear, Inc., supra. It is knowledge, actual or constructive, that creates the duty to take reasonable precautions for the safety of those lawfully using the premises.
On its face, one would assume that, of all places, banks certainly have a heightened need to provide security since, as Willy Sutton said, "That's where the money is." However, as several cases on bank liability explain, such an institution only has "a duty to take reasonable precautions to secure its premises is it knew or had 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 users. . . ." Dyer v. Norstar Bank, N.A., 186 A.D.2d 1083 (4th Dept. 1992) (quoting Nallan, supra at 519) (emphasis added), lv. app. denied 81 N.Y.2d 703 (1993). Thus, the layman's intuitive understanding that a bank is, by definition, a "safe" place has been restricted by the narrower rule of landowner liability.
For example, in Vaughan v. Bank of New York, 230 A.D.2d 731 (2d Dept. 1996), the Second Department found that where there was only one instance of a prior robbery at the bank's night depository in the two-year period before the incident, the risk of robbery at that night depository was not foreseeable. Thus, the court held that the bank could not be held liable to its customer, who was assaulted and robbed while making a deposit. The same result was reached in Golombek v. Marine Midland Bank, N.A., 193 A.D.2d 1113 (4th Dept 1993). There, in discounting plaintiffs evidence of two reported crimes prior to the incident in question, a robbery at the night depository 22 months earlier and a robbery at the bank 10 months earlier, the court stated that the two incidents did not give rise to a duty on the bank's part to anticipate a risk of harm from criminal activities at the night depository box. See also Cercone v. Norstar Bank, N.A., Inc., 199 A.D.2d 987 (4th Dept. 1993) (bank not liable for fatal assault at night deposit box).
A similar line of cases, involving robberies at ATM machines during off-hours, hold that the failure to demonstrate a significant number of recent crimes in the immediate vicinity of the ATM precluded a finding that the assault at issue was forseeable. The leading, and most recent, decision in this area is Williams v. Citibank, 247 A.D.2d 49 (1st Dept. 1998). Writing for a unanimous bench, Justice Sullivan analogized to the night depository cases and found that the mere assertion, or, "[e]ven evidence of prior criminal activity in the general neighborhood will not satisfy a plaintiffs burden. Nor does plaintiff's unsupported assertion, that 'ATM's attract criminal activity', satisfy his obligation to show that Citibank was on notice of previous criminal activity at this particular facility. This statement has no probative value." Id. at 52 (citations omitted). In addition, Justice Sullivan took care to rehearse the several ways in which Citibank had provided "certain minimal security measures"; ingress only by use of all ATM card; fire bolts; one exterior wall of untinted glass; three surveillance camera; and a working telephone.
However, unlike the night depository or ATM cases, the assault on Moskal was inside the building, and in an area which, by its very nature, was intended to be more private and secure. Access to the basement was restricted to bank employees and vault customers. In this regard, Moskal's situation is more akin to cases assessing a landowner's duty to provide security for the benefit of tenants and invitees. Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544 (1998); Garrett v. Twin Parks Northeast Site 2 Houses Inc., 256 A.D.2d 224, 682 N.Y.S.2d 349, 350 (1st Dept. 1998) (Saxe, J., concurring).
True, there is little proof of notice of prior criminal activities, and none of any incident similar to Moskal's. However, there was notice of a hazard to using the stairwell; in fact, it was so well known that the bank and the owner agreed upon a policy prohibiting the use of the stairs. The Fleet vice president expressed concern that customers has used the stairs when he knew it to be dangerous to do so. As admitted by Fleet, it had an established policy of prohibiting customers from using the stairs even prior to the construction, because of the physical danger the stairs posed. The dangerousness of the stairwell was recognized as even greater during the construction period, such that a security officer was specifically instructed to direct people away from the stairs to the elevator. Security acknowledged that it was under specific instructions from "the building people" and Fleet to keep people out of the stairwell and to direct them to the elevator. The vault area itself was frequented by Diamond District jewelers, it was a special "secure" area where entrants had to present verification of their account and their deposit box key, and there was always at least one attendant present.
Fleet's basement also contained a lunchroom for its employees, a storage room and mail room, a telephone closet for the building and two bathrooms.
Merely because it was criminal activity that actually harmed Moskal, rather than the steepness of the stairs or the presence of construction materials and debris, is immaterial. Harm of some sort was foreseeable, which Fleet recognized and created a specific policy to keep people away from that area. Yet the bank failed to ensure that its policy was carried out. Indeed, as Moskal suggests, it may have been the accessibility of the door to the basement that permitted the mugger to gain entry to that area, since a non-employee entering the basement from the elevators would likely have been noticed by the attendants inside the vault area.
Given these unique circumstances, the Court finds that Moskal has plainly raised a question for the jury as to whether these defendants permitted their own clear policy to be disregarded. See Garrett v. Twin Parks Northeast Site 2 Houses. Inc., supra, 256 A.D.2d 226, 682 N.Y.S.2d 349, 350 (1st Dept. 1998) ("whether particular precautions are adequate to fulfill the landlord's obligation is almost always a question of fact for the jury based upon the nature of the risk presented and the availability of security measures"). If believed by the jury, this disregard of a known condition of danger could warrant a jury finding of proximate cause, and negligence. In other words, it is not through mere speculation that a jury could determine that Fleet did have a duty to protect Moskal from the assault and robbery.
"When faced with a motion for summary judgment on proximate cause grounds, a plaintiff need not prove proximate cause by a preponderance of the evidence, which is plaintiffs burden at trial. Instead, in order to withstand summary judgment, a plaintiff need only raise a triable issue of fact regarding whether defendant's conduct proximately caused plaintiff's injuries." Cisse v. S.F.J. Realty Corp., 256 A.D.2d 257, 682 N.Y.S.2d 199, 201 (1st Dept. 1998). See also Travieso v. 3908 Bronx Blvd. Corp., 259 A.D.2d 276 1999 WL 110590 at *3 (1st Dept. 3/4/99) (slip op.); Tully v. Sylvan Lawrence Company, Inc., ___ F. Supp. ___, 1999 WL 60148 (S.D.N.Y. 2/4/99) (slip op.) (explaining Burgos as having eased plaintiff's burden in providing negligent security); Comeau v. Wray, 241 A.D.2d 602 (3rd Dept. 1997) (landowners with reasonable awareness of obvious danger have duty to warn or protect); Hoey v. City of New York, 187 A.D.2d 386 (1st Dept. 1992) (issues of fact preclude summary judgment); Stalzer v. European American Bank, 113 Misc.2d 77 (Civ.Ct. New York Co. 1982) (bank's duty of care).
If a jury does find a duty, the precise degree to which UOB and Axiom shared that duty is unclear, since they argue almost exclusively on the absence of foreseeability. While their degree of control over the security appears to have been, to a great extent, shared with the bank, it was not delegated to Fleet. As noted, under Article 16, ¶ 16.03 of its lease, Fleet was required to obtain insurance in the landlord's favor to ensure against all claims "for personal injury, death or property damage". However, it is unnecessary for the purposes of summary judgment to determine to what extent this clause is effective since these partes' proportionate liability, and responsibility, must await trial and a finding of a duty and liability. See Modern Settings, Inc., v. American District Telegraph Co., 121 A.D.2d 266 (1st Dept. 1986) triable issues of fact as to meaning and application of indemnification provision.
The presence of reasonably foreseeable harm also directly implicates Security, since it was charged with the specific task of keeping people from using the stairs. Security argument that Moskal was not a third-party beneficiary of its contract to provide security of officers is somewhat disingenuous, since the provision of "security officer(s) uniformed, unarmed, to report conditions of fire, theft, vandalism and trespassing" certainly inures to the benefit of those who bring their valuables to Fleet for safekeeping. This highlighted by a 1995 letter from Axiom to Security, which states that "Ownership's first concern in implementing around-the-clock security is to insure the safety and well-being of the occupants as well as the property. It follows, therefore, that the quality of security must be maintained on all shifts. Your staff must be trained and tested frequently." In Palka v. Servicemaster Management Services Corporation, 83 N.Y.2d 579 (1994), the Court took pains to carefully explain that customers entering a business open to the public have a reasonable expectation that the degree of security and safety therein is commensurate with the purpose of the business. In Palka it was a hospital's duty to the public. Id. at 585 ("'[t]he risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation'") (quoting Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 344) (emphasis in original). See also Stickle v. City-Wide Security Service, Inc., 839 F. Supp. 207 (S.D.N.Y. 1993) (question of fact, precluding summary judgment, as to whether office worker was third-party beneficiary of contract between building owner and security service).
Interior, however, clearly had no duty to customers outside the scope of its construction activities. Blocking the elevator with scaffolding was necessary in the performance of its tasks and, assuming causation, if Security and Fleet had followed the established policy, Interior's blockage of the elevator would have been of no moment. Upon no set of facts can it be said that Interiors activities were the "substantial causative factor in the sequence of events" which led to the assault upon Moskal.Mkrtchyan v. 61st Woodside Associates, 209 A.D.2d 490 (2nd Dept. 1994). Accordingly, it is
ORDERED that UOB and Axiom's motion for summary judgment is DENIED; and it is further
ORDERED that Fleet's cross-motion for summary judgment is DENIED; and it is further
ORDERED that Security's motion for summary judgment is DENIED; and it is further
ORDERED that Interior's cross-motion for summary judgment is GRANTED and the Clerk is directed to enter judgment dismissing the action as to Defendant Interior.