Opinion
6678 Index 151453/16
05-24-2018
JG, et al., Plaintiffs–Appellants, v. Myron GOLDFINGER, et al., Defendants–Respondents.
R. Zachary Gelber Law PLLC, New York (R. Zachary Gelber of counsel), for appellants. Michael Fuller Sirignano, Cross River, for Myron Goldfinger and June Goldfinger, respondents. Jason M. Krellenstein, PLLC, Cross River (Jason M. Krellenstein of counsel), for Covecastles Development Corporation and Covecastles Limited, respondents.
R. Zachary Gelber Law PLLC, New York (R. Zachary Gelber of counsel), for appellants.
Michael Fuller Sirignano, Cross River, for Myron Goldfinger and June Goldfinger, respondents.
Jason M. Krellenstein, PLLC, Cross River (Jason M. Krellenstein of counsel), for Covecastles Development Corporation and Covecastles Limited, respondents.
Renwick, J.P., Manzanet–Daniels, Mazzarelli, Kapnick, Kahn, JJ.
Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered February 7, 2017, which, to the extent appealed from as limited by the briefs, granted defendants' motions to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7), unanimously modified, on the law, to deny the motion of defendants Covecastles Development Corporation and Covecastles Limited to dismiss the complaint as against them, and otherwise affirmed, without costs.
Plaintiffs allege that, while on vacation at a resort in Anguilla, a gardener employed by defendants' resort attacked the infant plaintiff, as she was on her way down to the beach. Plaintiffs allege that defendants, the resort owner and manager, and two of its shareholders, negligently failed to provide appropriate security and negligently hired the gardener, who had a criminal history.
While an innkeeper is by no means an insurer of its guests' safety, it does, as a landowner, have a duty to guard against reasonably foreseeable criminal acts of third parties that threaten the property or well-being of its patrons (see Penchas v. Hilton Hotels Corp., 198 A.D.2d 10, 10–11, 603 N.Y.S.2d 48 [1st Dept. 1993] ). We have applied this doctrine not only in cases where the assailant was a stranger to the defendant, but also, as in the case here, where the underlying act was committed by an employee of the establishment (see Betancourt v. 141 E. 57th St. Corp., 56 A.D.2d 823, 823–24, 393 N.Y.S.2d 35 [1st Dept. 1977] ).
While the Covecastles defendants came forward with documentary evidence showing that they did not own the beach where the infant plaintiff was found, they failed to conclusively establish either that no part of the attack occurred on their property or that they had no responsibility for that area, which they touted as "our" beach. In addition, defendants failed to offer any evidentiary basis for the court to overlook the clear allegation in the complaint that the assailant had a criminal history that made the attack foreseeable to defendants.
Similarly, when construing the complaint liberally, presuming its factual allegations to be true, and giving the allegations every favorable inference (see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ), plaintiffs adequately state a claim for negligent hiring (see Haddock v. City of New York, 140 A.D.2d 91, 94, 532 N.Y.S.2d 379 [1st Dept. 1988], affd 75 N.Y.2d 478, 554 N.Y.S.2d 439, 553 N.E.2d 987 [1990] ). Although the complaint did not specifically plead that Covecastles knew of the employee's propensity to commit a sexual assault that would cause injury to the infant plaintiff, plaintiffs may later amplify these allegations in a bill of particulars (see Jarvis v. Nation of Islam, 251 A.D.2d 116, 117, 674 N.Y.S.2d 324 [1st Dept. 1998] ; and see Pickering v. State of New York, 30 A.D.3d 393, 394, 816 N.Y.S.2d 566 [2nd Dept. 2006] ).
However, the complaint failed to state a cause of action against defendants Myron Goldfinger and June Goldfinger, as the allegations regarding their involvement in the security and hiring at the resort are insufficient.