Opinion
1061, 17475/05.
05-05-2016
Charles WONG, etc., et al., Plaintiffs–Respondents, v. RIVERBAY CORPORATION, Defendant–Appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for appellant. McGovern, Connelly & Davidson, New Rochelle (Frank H. Connelly, Jr., of counsel), for respondents.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for appellant.
McGovern, Connelly & Davidson, New Rochelle (Frank H. Connelly, Jr., of counsel), for respondents.
SWEENY, J.P., ACOSTA, MANZANET–DANIELS, GISCHE, GESMER, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about August 7, 2015, which denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Defendant established entitlement to judgment as a matter of law by showing that it owed no duty to protect plaintiff Charles Wong's decedent, Malachi Wong, and his brother, plaintiff Timothy Wong, from the shootings that occurred in the public vestibule of their building. A landowner's duty to take minimal security precautions does not extend to exterior public areas, including walkways and vestibules (see Novikova v. Greenbriar Owners Corp., 258 A.D.2d 149, 155, 694 N.Y.S.2d 445 [2d Dept.1999] ; see also Williams v. New York City Hous. Auth., 56 A.D.3d 361, 867 N.Y.S.2d 442 [1st Dept.2008] ; Ward v. New York City Hous. Auth., 18 A.D.3d 391, 392, 795 N.Y.S.2d 568 [1st Dept.2005] ). Contrary to the motion court's finding, plaintiffs' evidence failed to raise a triable issue of fact as to whether the shootings were foreseeable. The article in the Co–op City Times, expressing the need for a greater police presence in Co–op City, and defendant's public safety records, indicating 24 reports of gunshots fired on the premises, were insufficient, since they did not indicate that any of the reported shootings occurred in the vicinity of plaintiffs' building (see Novikova, 258 A.D.2d at 152–153, 694 N.Y.S.2d 445 ). The location of where the shots were fired is relevant, in light of the fact that Co–op City spans two-square miles and is comprised of approximately 200 residential buildings (see Florman v. New York, 293 A.D.2d 120, 127, 741 N.Y.S.2d 233 [1st Dept.2002] ; Leyva v. Riverbay Corp., 206 A.D.2d 150, 152–153, 620 N.Y.S.2d 333 [1st Dept.1994] ).
The affidavit of plaintiffs' security expert in which he states that defendant's reduction of its security officers at midnight proximately caused decedent's and Timothy Wong's injuries is insufficient to raise a triable issue of fact as to whether defendant breached its duty to provide minimal precautions against the foreseeable criminal acts of third parties (see Villa v. Paradise Theater Prods., Inc., 85 A.D.3d 402, 924 N.Y.S.2d 364 [1st Dept.2011] ). Furthermore, defendant did not proximately cause the injuries, since the record shows that the assailant specifically targeted Malachi and Timothy (see Flores
v. Dearborne Mgt., Inc., 24 A.D.3d 101, 806 N.Y.S.2d 478 [1st Dept.2005] ).