Decided March 29, 2006.
Mark E. Feinberg. Esq., Brooklyn NY, forPlaintiff.
Hagan Coury Associates, Brooklyn NY, for Defendant.
Defendants in this negligent premises security action move, pursuant to CPLR Rule 3212, for summary judgment and dismissal of the complaint. It is uncontroverted that decedent, Sanford M. Young, was murdered in a hallway at 1629 St. John's Place, Brooklyn, New York, on March 7, 2002, at about 8:30 A.M. [exhibit C of motion — Mr. Young's death certificate]. Defendants are the owners of 1629 St. John's Place. Decedent's death certificate states that the manner of death was "homicide" and that the immediate cause of death was "gunshot wounds to head, trunk and extremities with brain, heart, lungs and muscoleskeletal injuries," five minutes earlier, at 8:25 A.M. The same medical examiner who prepared the death certificate performed the autopsy on the decedent the day after his slaying, March 8, 2002 [exhibit D of motion — autopsy report]. In his autopsy report the medical examiner used the same quotation as cited above for decedent's cause of death.
The autopsy report states that Mr. Young received six-gunshot wounds: two in the head; one in the chest; and, three in the lower extremities. The trajectory of the bullets to the head indicated that the decedent was standing when shot. One bullet went into the back of the head, traveled upward through the brain, caused massive hemorrhaging, and was recovered from the right frontal bone. The other bullet to the head went upward through the chin and then lodged itself in the tongue. The chest bullet entered in the left front, traveled downward to the right, pierced the left lung and the right ventricle of the heart, and exited through the back. The fourth bullet entered the front of the right thigh and exited as it traveled downward. Bullet five entered the right thigh on the side, traveled downward and exited. The sixth bullet entered and exited from decedent's left foot. The forensic toxicology report detected marijuana in decedent's blood and urine, which is evidence of recent use of this illegal substance.
According to plaintiff's verified bill of particulars [exhibit F of motion], decedent was 26 years old at the time of his demise and had not worked since 2000, when he performed stock work at a clothing store. The bill of particulars notes that "upon information and belief, only a portion of the decedent's income was on the books'." The death certificate, in information provided by decedent's mother, states that his usual occupation was "entrepreuer" [sic]. There is no other information presented as to what business this "entrepreneur" actually engaged in.
The perpetrators(s) of the crime were never apprehended and the identity of the perpetrator(s) has not been determined. There is no information of how the killer(s) gained access to the premises. However, plaintiff claims that defendants' negligent security at the premises caused plaintiff's decedent "to be assaulted and shot which resulted in his demise" [exhibit A of motion — verified complaint]. In the verified bill of particulars, plaintiff claims that defendants had "constructive notice . . . that the area where the occurrence took place was, upon information and belief, a high crime area and that . . . prior criminal activity had occurred in the premises where the incident occurred."
Summary judgment must be granted to defendants and the action dismissed. As a matter of law, without any evidence that the perpetrators(s) of decedent's death were intruders, plaintiff cannot succeed in her action. Further decedent's homicide appears to be an execution. When killers plan a crime and target a victim the owners of the scene of the crime cannot be liable, regardless of negligence. Lastly, no evidence has been presented of any prior criminal activity at the premises or the immediate vicinity that would put defendants on notice of any criminal activity.
Summary Judgment Standard
The proponent of summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. See Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980); Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Matter of Redemption Church of Christ v. Williams, 84 AD2d 648, 649 (3rd Dept 1981); Greenburg v. Manlon Realty, 43 AD2d 968, 969 (2nd Dept 1974); Winegrad v. New York University Medical Center, 64 NY2d 851 (1985).
CPLR Rule 3212 (b) requires that for a court to grant summary judgment the court must determine if the movant's papers justify holding as a matter of law, "that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the nonmoving party. Marine Midland Bank, N.A. v. Dino Artie's Automatic Transmission Co., 168 AD2d 610 (2nd Dept 1990). Summary judgment shall be granted only where there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. Friends of Animals, Inc., v. Associated Fur Mfrs., 46 NY2d 1065 (1979).
Defendants' motion for summary judgment demonstrates a prima facie showing of entitlement to judgment as a matter of law, even when viewing the evidence submitted in the light most favorable to plaintiff. Plaintiff failed to present any evidence as to the identity of Mr. Young's killer(s). Nowhere in the complaint does plaintiff even allege that the perpetrators(s) were intruders. Without evidence that decedent's assailants(s) were intruders summary judgment must be granted to defendants.
In a negligent premises security action one may recover damages from a landlord only upon showing that the negligent conduct of the landlord was a proximate cause of injury. Smith v. New York City Housing Authority, 261 AD2d, 390, 391 (2nd Dept 1999). The Smith decision relied upon the Court of Appeals holding in Burgos v. Aqueduct Realty Corp., 92 NY2d 544 (1998). The Burgos Court, at 550-551, instructed that:
In premises security cases particularly, the necessary causal link between a landlord's culpable failure to provide adequate security and a tenant's injuries resulting from a criminal attack in the building can be established only if the assailant gained access to the premises through a negligently maintained entrance. Since even a fully secured entrance would not keep out another tenant, or someone allowed into the building by another tenant, plaintiff can recover only if the assailant was an intruder.
Without such a requirement, landlords would be exposed to liability for virtually all criminal activity in their buildings.
Plaintiff has failed to present any evidence that the killer(s) entered the premises without permission. Burgos noted, at 548, that "[l]andlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm,' including a third party's foreseeable criminal conduct (Jacqueline S. v. City of New York, 81 NY2d 288, 293-294)." If a tenant or guest is the crime victim of an intruder, the landlord's negligent conduct has to be shown to be a proximate cause of injury.
The Court in Alvarez v. Masaryk Towers Corp., 15 AD3d 428 (2005), held, at 429, that "[t]his necessary causal link can be established only if the evidence renders it more likely or more reasonable than not that the assailant was an intruder who gained access to the premises through a negligently maintained entrance' (Burgos v. Aqueduct Realty Corp., 92 NY2d 544, supra at 551." See Venetal v. City of New York, 21 AD3d 1087 (2nd Dept 2005).
In the instant case, the killer(s) could have entered the building in many different ways. It is possible that the perpetrators(s) were either fellow "entrepreneurs" or "customers" and Mr. Young let him or them in, or he could have buzzed the intercom to let the killer(s) into the building, or he could have convinced another tenant to let the assailant(s) in so that he could wait in the hallway. It is also possible that the perpetrator(s) could have been other tenant(s) or guest(s) of other tenant(s). Any of these were possible, and since plaintiff has no evidence to prove that the killer(s) entered without permission, there is no way for plaintiff to succeed in this action. Plaintiff's case rests upon conjecture that negligent premises security allowed an intruder or intruders to kill Mr. Young. Summary judgment is appropriate when sufficient facts are not presented to demonstrate that the causation of the accident by negligence can be reasonably inferred. Babino v. City of New York, 234 AD2d 241, 241-242 (2nd Dept 1996). The Babino Court also instructed, at 242, that:
[t]he plaintiffs are not required to exclude every possible cause of the accident other than the defendant's negligence, but the other possible causes must be rendered sufficiently remote so as to enable the trier of fact to reach a conclusion based upon the logical inferences to be drawn from the evidence, and not upon speculation.
See Martynick v. TDX Const. Corp., 251 AD2d 465 (2nd Dept 1998); Cain v. Amaro, 287 AD2d 676 (2nd Dept 2001).
In Tolliver v. New York City Housing Authority, 238 AD2d 187 (1st Dept 1997), defendant admitted that the front door lock of plaintiff's building was inoperable. Plaintiff, a building resident, was accosted by an assailant who demanded money from him. Plaintiff didn't recognize the perpetrator, who shot the victim four times, then struck the plaintiff in his face with a gun, and fled the building. The Court held, at 188, that "plaintiff's conclusion that his attacker gained entrance to the premises because of the broken front door lock and not as a tenant or invitee of a tenant is speculative. Therefore, plaintiff has failed to meet his evidentiary burden in order to defeat defendant's motion for summary judgment." In a subsequent case in which plaintiff alleged that he was assaulted by an intruder who entered the premises due to defendant's negligence, Cofield v. New York City Housing Authority, 249 AD2d 498 (2nd Dept 1998), the Court reversed Supreme Court, Kings County and granted summary judgment. The Cofield Court cited Tolliver, holding at 499, that:
the defendant's submissions demonstrated that it was impossible to identify the assailant. Thus, it was impossible to determine whether he or she was an intruder who gained access to the premises due to the defendant's alleged negligence. The plaintiff's opposing allegations rest upon speculative assertions with respect to the identity of the assailant, which are insufficient to defeat the defendant's motion [citations omitted].
See Rivera v. New York City Housing Authority, 239 AD2d 114 (1st Dept 1997); Smith v. New York City Housing Authority, supra; Soto v. 2101 Realty Co., 266 AD2d 529 (2nd Dept 1999); Thomas v. Foster Apartments Group, 286 AD2d 492 (2nd Dept 2001).
In Perry v. New York City Housing Authority, 222 AD2d 567 (2nd Dept 1995), plaintiff alleged that landlord failed to provide adequate security by not locking outside doors to her building, and that her ex-boyfriend was thus able to enter the building, kick-in her door, and assault her with a knife. Supreme Court, Kings County denied summary judgment for defendant landlord. The Appellate Division reversed, granted summary judgment and dismissed the complaint, holding, at 568, that:
[w]ith regard to the allegation that the outside doors to the building were unlocked, the plaintiff offers no evidence that her assailant took advantage of the unlocked doors to enter the building. Thus the plaintiff has raised no factual issue as to whether the unlocked doors were a proximate cause of her injuries.
In the instant case the evidence points to a premeditated crime. Decedent was executed by six shots to make sure he died, including two into the head and one into the heart. Even if defendants had been negligent, their negligence did not cause decedent's death. In Harris v. New York City Housing Authority, 211 AD2d 616 (2nd Dept 1995), decedent was murdered in defendant's building. Plaintiff, decedent's administratrix, alleged that the Housing Authority's failure to properly maintain the front door lock of the building in which the decedent was killed was the proximate cause of decedent's death. The Court affirmed summary judgment in favor of defendant, holding, at 616-617, that:
The record reveals that Harris was the victim of a targeted murder by a long-time enemy who had tried to kill him on at least one prior occasion. Such an intentional act was an unforeseeable, intervening force which severed the causal nexus between the alleged negligence of the NYCHA and the complained-of injury ( see, Tarter v. Schildkraut, 151 AD2d 414; Iannelli v. Powers, 114 AD2d 157; Santiago v. New York City Hous. Auth., 101 AD2d 735, affd 63 NY2d 761). Moreover, there is no evidence that the assailant's entry onto the premises was due to the failure of the NYCHA to install or maintain a lock on the front door.
In Nallan v. Helmsley-Spear, Inc., 50 NY2d 507 (1980), plaintiff was shot in the back while standing in the lobby of defendant's building. The Court held that a landlord has a duty to adopt reasonable security measures if aware of reasonably foreseeable criminal activity at the premises. In the instant case nothing is presented by plaintiff, other than rank speculation in the complaint and bill of particulars, that criminal activity occurred at the premises or nearby. This is insufficient to show that defendants in the instant action had notice that a crime might occur at 1629 St. John's Place. Goldberg v. Linden Towers Co-op No. 5 Inc., 147 AD2d 672 (2nd Dept 1989).
Iannelli v. Powers, supra, applied Nallan to a case in which a victim was killed by robbers in an office building. The record contains little evidence of criminal activity at the building or the surrounding area. The Court found that the landlord could not have reasonably foreseen the robbery and homicide. The Court, at 163, held that "[t]he robbery and shooting by third persons in this case were superseding, intervening criminal acts which were not reasonably foreseeable and which severed any possible causal link between the appellants-respondents' conduct and the death of the plaintiff's decedent ( see Santiago v. New York City Housing Auth., 101 AD2d 735, affd 63 NY2d 761)."
In Novikova v. Greenbriar Owners Corp., 258 AD2d 149 (2nd Dept 1999), a guest was killed in a building's vestibule. Plaintiffs alleged that defendants should have had 24 hours a day doorman service at the subject apartment building to prevent crime. Plaintiffs failed to present any evidence that defendants knew of or should have been aware of criminal activity at the building. The Court in granting summary judgment to the defendants, held at 153, that, "to establish foreseeability, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location. Here, this was not done."
In Maria S. v. Willow Enterprises Inc., 234 AD2d 177 (1st Dept 1996), plaintiff was raped by three unknown intruders in her apartment. The landlord was sued for inadequate security at the premises. The Court affirmed summary judgment for the landlord, holding, among several reasons, that the landlord could not have foreseen criminal activity at the premises. The Court found that plaintiff presented only unspecified and conclusory allegations of prior criminal activity at the premises. This is insufficient to demonstrate that the landlord had prior notice of criminal activity at the premises. See Provenzano v. Roslyn Gardens Tenants Corp., 190 AD2d 718 (2nd Dept 1993); Surini v. Adamowicz, 200 AD2d 737 (2nd Dept 1994); Mendez v. 441 Ocean Ave. Associates, 234 AD2d 524 (2nd Dept 1996); Levine v. Fifth Housing Co., Inc., 242 AD2d 564 (2nd Dept 1997); Alonso v. Branchinelli, 277 AD2d 408 (2nd Dept 2000); Erlich v. Greenacre Associates, 295 AD2d 558 (2nd Dept 2002).
In opposing defendants' summary judgment motion the burden shifts to plaintiff to demonstrate the existence of triable issues of fact. See Alvarez v. Prospect Hospital, supra; Winegrad v. New York University Medical Center, supra. Plaintiff has failed to do this. In her opposition papers, plaintiff failed to dispute: the lack of history of violent crime at and around the premises; that decedent's killers(s) were not intruders at the subject premises; and, that decedent was likely the victim of a targeted murder. By not even attempting to dispute these allegations, the allegations are now admitted facts in the instant action. The Court of Appeals in Kuehne Nagel, Inc. v. Baiden, 36 NY2d 539, 544 (1975), instructed that, "[f]acts appearing in the movant's papers which the opposing party does not controvert, may be deemed to be admitted." With defendants establishing a prima facie entitlement to summary judgment, plaintiff is then "required to lay bare its proof to show that there was a triable issue of fact." Silberstein, Awad Miklos, P.C. v. Carson, 10 AD3d 450 (2nd Dept 2004). Plaintiff's opposition papers address irrelevant issues and do not dispute defendants' recitation of the key issues in the instant case.
Denial of discovery because of plaintiff's voluntary inaction
Further, in her opposition papers, plaintiff argues that discovery is necessary. No one knows the identity of the murderer(s). A plaintiff cannot defeat a summary judgment motion by hoping to uncover additional evidence during discovery. Lopes v. Sears, Roebuck and Co., 273 AD2d 360 (2nd Dept 2000). The Court, in Baron v. Newman, 300 AD2d 267, 268 (2nd Dept 2002), clearly stated that [t]here is no merit to the plaintiff's contention that the motion for summary judgment was premature because discovery was not complete. The plaintiff may not rely upon mere hope that evidence sufficient to defeat summary judgment may be uncovered during the discovery process (see Drug Guild Distrib. v. 3-9 Drugs, 277 AD2d 197; Weltmann v. RWP Group, 232 AD2d 550; Aminov v. East 50th St. Rest. Corp., 232 AD2d 592). See Blatt v. New York City Housing Authority, 123 AD2d 591 (2nd Dept 1986). Additionally, plaintiff waived her right to discovery by her failure to seek discovery in a reasonable period of time. Plaintiff engaged in voluntary inaction for almost eighteen months. Issue in the instant action was joined with defendants' filing of their answer on October 29, 2003. On March 18, 2005, defendants filed the request for judicial intervention with the Kings County Clerk. In May 2005, in her attorney's affirmation in opposition and her attached affidavit, plaintiff finally requested discovery, without specifying what she is trying to discover. The Court of Appeals, in Meath v. Mishrick, 68 NY2d 992 (1986), instructed at 994-995, that:
Summary judgment may not be defeated on the ground that more discovery is needed, where, as here, the side advancing such an argument has failed to ascertain the facts due to its own inaction (see, Tausig Son v. Providence Wash. Ins. Co. 28 AD2d 279, affd 21 NY2d 1022; Silinsky v. State-Wide Ins, Co., 30 AD2d 1, 5-6).Plaintiffs had ample opportunity to commence discovery proceedings before this motion was brought but did not do so. In Karakostas v. Avis Rent A Car Systems, 301 AD2d 632, (2nd Dept 2003), summary judgment was granted in a personal injury action. Opposing counsel waited one year to seek discovery in his papers opposing the instant motion. The Court found this to be "voluntary inaction." The failure of plaintiff in the instant action to demonstrate how discovery might yield material facts warrants denial of summary judgment. De Lage Landen Financial Services, Inc. v. Mannetti Associates, Ltd., 305 AD2d 365 (2nd Dept 2003). Recently, in Downey v. Schneider, 23 AD3d 514 (2nd Dept 2005), the Court, in affirming summary judgment for defendants, denied plaintiff's argument that additional discovery was needed. The Court, at 517, held that:
since the plaintiff's request for additional discovery was not calculated to develop any additional information relevant to the plaintiff's claim and can be characterized as nothing more than a fishing expedition, relief pursuant to CPLR 3212 (f) was properly denied (see Greenberg v. McLaughlin, 242 AD2d 603, 604 ; Price v. County of Suffolk, 303 AD2d 571 ; Karakostas v. Avis Rent A Car Systems, 301 AD2d 632 ; Zarzona v. City of New York, 208 AD2d 920 ; Amsterdam Sav. Bank v. Terra Domus Corp., 97 AD2d 41, 45 ).With plaintiff's admission of the crucial facts in the instant case, the case is ripe for summary judgment. It is undisputed by plaintiff that defendants lacked notice of any history of violent crime in the area, that decedent was likely the victim of a premeditated homicide, and that decedent was killed by an intruder or intruders. Plaintiff failed to present triable issues of fact and has not raised any relevant issues of fact. Therefore, plaintiff's voluntary inaction waived any right of plaintiff to discovery, which would only be a fishing expedition into the nether world of rumor, speculation and conjecture. Summary judgment must be granted to defendants.
Accordingly, it is ORDERED, that the motion of defendants, pursuant to CPLR Rule 3212, for summary judgment and dismissal of the instant action is granted. This constitutes the Decision and Order of the Court.