Opinion
2003-03113.
Decided April 19, 2004.
In an action to recover damages for personal injuries, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Cozzens, J.), dated March 18, 2003, as granted the separate cross motions of the defendants Sullivan and Charles Enterprise, Ltd., d/b/a MCS Security and FGP Heritage Square, Inc., s/h/a FGP County Estates, Inc., for summary judgment dismissing the complaint insofar as asserted against them.
Sanders, Sanders, Block Woycik, P.C., Mineola, N.Y. (Douglas H. Sanders and Howard Eison of counsel), for appellants.
Morris, Duffy, Alonso Faley, LLP, New York, N.Y. (Michael Titowsky of counsel), for respondent Sullivan and Charles Enterprise, Ltd., d/b/a MCS Security.
Bartlett, McDonough, Bastone Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro, Jr., and Jennifer E. Bienstock of counsel), for respondent FGP Heritage Square, Inc., s/h/a FGP Country Estates Inc.
Before: FRED T. SANTUCCI, J.P., ANITA R. FLORIO, ROBERT W. SCHMIDT, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.
The plaintiffs were injured on August 15, 1999, when they were shot by an unapprehended assailant or assailants outside a building then-owned by the defendant FGP Heritage Square, Inc., s/h/a FGP Country Estates Inc. Security services were provided by the defendant Sullivan and Charles Enterprise, Ltd., d/b/a MCS Security (hereinafter MCS). The plaintiffs commenced this action against, among others, the respondents, alleging, inter alia, that they failed to provide adequate security on the subject premises. The Supreme Court granted the respondents' separate motions for summary judgment dismissing the complaint insofar as asserted against them. We affirm.
The respondents established that the actions complained of by the plaintiffs consisted of criminal actions by a third party, which actions were not reasonably foreseeable. The proof submitted by the plaintiffs in opposition thereto, while showing evidence of prior criminal incidents on the subject premises, failed to raise an issue of fact as to foreseeability, as the prior incidents were not similar to the drive-by shooting in the case at bar ( see Scheir v. Lauenborg, 281 A.D.2d 530; see generally Jacqueline S. v. City of New York, 81 N.Y.2d 288; Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507). In any event, the causal connection between this criminal act on a public street and any alleged negligence on the part of the respondents is too attenuated, as a matter of law, to serve as a basis for liability ( see Allen v. New York City Hous. Auth., 203 A.D.2d 313; Salvamoser v. Pratt Inst., 150 A.D.2d 666; see also McPherson v. New York City Hous. Auth., 228 A.D.2d 654).
In addition, MCS had neither a common-law nor a contractual duty to protect the plaintiffs under the circumstances presented ( see Pascarelli v. LaGuardia Elmhurst Hotel Corp., 294 A.D.2d 343; Haston v. East Gate Sec. Consultants, 259 A.D.2d 665; Bernal v. Pinkerton's, Inc., 52 A.D.2d 760, affd 41 N.Y.2d 938).
SANTUCCI, J.P., FLORIO, SCHMIDT and RIVERA, JJ., concur.