Thomas R. Davis, J.

Jesse C. Cotter, Esq., The Cotter Law Group, Attorney for Plaintiff, 1 Water Lane, Suite 101, Manhasset, NY 11030

Paul K. Leary, Esq., COZEN & O'CONNOR, Attorney for Defendants Marriott International, Inc.; Courtyard Management Corporation & CBM Two Hotels LP, 1650 Market Street, Philadelphia, PA 19103

Joseph S. Gulino, Esq., The Law Offices of Joseph S. Gulino, Jr., Esq., PLLC, Attorney for Defendant Roy Johnson, 75 S. Broadway, 4th Floor, White Plains, NY 10601

Thomas R. Davis, J. In this action, arising from a shooting at the Courtyard Marriott Hotel in Poughkeepsie, New York on October 2, 2022, the Defendants move, pursuant to CPLR § 3211, to dismiss the complaint. BACKGROUND:

In the days before October 2, 2022, a number of families checked into the Marriott hotel in Poughkeepsie to enjoy Family Weekend at nearby Marist College. Also, according to the complaint filed in this matter, staying in the hotel were Defendants Roy Johnson and Devin Taylor (the "individual Defendants").

On the morning of Sunday, October 2, Defendant Johnson entered the lobby armed with a gun and shot and killed Paul Kutz, a stranger to him and the father of a Marist student, for no apparent reason and without provocation. He then fired numerous other shots throughout the lobby, including, according to the Plaintiff, in her direction as she sat next to Mr. Kutz.

Ms. Martirano seeks damages in this civil action against Johnson, his accomplice, Taylor, as well as Marriott International, Inc., Courtyard Management Corporation, and CBM Two Hotels, LP.

Defendants Marriott International, Inc. and Courtyard Management Corporation move, pursuant to CPLR § 3211, to dismiss the action. (Motion Sequence #1). CBM Two Hotels, LP also moves to dismiss on the same and additional grounds. (Motion Sequence # 2).

The Plaintiff alleges several causes of action, all sounding in negligent infliction of emotional distress (hereinafter "NIED"), except for the claims against Johnson and Taylor, which allege intentional conduct.

DEFENDANTS’ BASES FOR DISMISSAL:

Defendants argue the action should be dismissed as to them for the following reasons:

I. The complaint fails to state a claim for purely emotional damages.

II. "Moving Defendants did not have the ability and/or opportunity to thwart the attack and the attack was entirely unforeseeable."

III. The complaint contains "duplicative counts."

Additionally, Defendant CBM Two Hotels, LP seeks dismissal because it is an "out of possession" landlord.

CPLR 3211 (a) (7) :

The standard for a CPLR 3211 (a) (7) motion is well established: "In the context of a CPLR 3211 motion to dismiss, the pleadings are necessarily afforded a liberal construction (see Leon, 84 N.Y.2d 83, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; see also CPLR 3026 ). Indeed, we accord Plaintiffs ‘the benefit of every possible favorable inference’ ( Leon, 84 N.Y.2d at 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; see also Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634, 389 N.Y.S.2d 314, 357 N.E.2d 970 [1976] )." Goshen v. Mut. Life Ins. Co. of New York , 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002].

In considering a CPLR § 3211 motion, the allegations in the complaint are to be "accepted as true." Granada Condominium III Ass'n v. Palomino , 78 A.D.3d 996, 996, 913 N.Y.S.2d 668 [2d Dept. 2010]. PROOF SUBMITTED TO SUPPLEMENT THE PLEADINGS:

In response to Defendant's motion, Plaintiff seeks to supplement her opposition with an affidavit from the Plaintiff and a complaint in a separate action arising from the same events filed by another individual, Olga Hosteya v. Marriott International, Inc. et. al. Dutchess County Index #2023-50259.

"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see, CPLR 3026 ). We accept the facts as alleged in the complaint as true, accord Plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( Morone v. Morone, 50 N.Y.2d 481, 484, 429 N.Y.S.2d 592, 413 N.E.2d 1154 [(1980)] ; Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634, 389 N.Y.S.2d 314, 357 N.E.2d 970 ). Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law (see, e.g., Heaney v. Purdy, 29 N.Y.2d 157, 324 N.Y.S.2d 47, 272 N.E.2d 550 [(1971)] ). In assessing a motion under CPLR 3211(a)(7), however, a court may freely consider affidavits submitted by the Plaintiff to remedy any defects in the complaint ( Rovello v. Orofino Realty Co., supra, 40 N.Y.2d at 635, 389 N.Y.S.2d 314, 357 N.E.2d 970 ) and ‘the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one’ ( Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 [(1977)] ; Rovello v. Orofino Realty Co., supra, 40 N.Y.2d at 636, 389 N.Y.S.2d 314, 357 N.E.2d 970 )." Leon v. Martinez , 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994].

Defendants oppose the supplement by the Hosteya complaint, arguing that it is not an "affidavit" and thus not in admissible form. However, the complaint filed is verified by Ms. Hosteya, thus in admissible form. CPLR § 105 : "(u) Verified pleading. A "verified pleading" may be utilized as an affidavit whenever the latter is required." Accordingly, the Court has considered the affidavit and the verified pleading.

I. Failure to State a Claim for Emotional damages.

Defendants claim that they owed no duty to their hotel guest to prevent the emotional injuries arising from the attack: "New York requires more than a general duty to sustain a claim for purely emotional damages, and Plaintiff has not pleaded sufficient facts to support anything more than a generalized duty." (Defendants Marriott International and Courtyard Management Corporation Reply Memorandum of Law at 6). While the elements of this cause of action have changed in recent years (the requirement of "extreme and outrageous behavior" no longer being necessary to a negligent infliction claim) there have been various iterations of what precisely the elements are.

(Of course, the Plaintiff here, not being a relative of Mr. Kutz, does not argue that the line of cases concerning being in the "zone of danger" which limits recovery to family members is applicable.)

The line of cases concerning this subset of negligent infliction of emotional distress ("non-zone of danger cases") appears to have its progeny in the Court of Appeals case of Battalla v. State , 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729 [1961]. In that case, addressing what it described as a proscription against recovery occasioned by fright, the Court said the proscription was based on reasoning "that a recovery would be contrary to public policy because that type of injury could be feigned without detection and it would result in a flood of litigation where damages must rest on speculation." Battalla v. State , 10 N.Y.2d 237, 240, 219 N.Y.S.2d 34, 176 N.E.2d 729 [1961]. In that case, the Court of Appeals sustained a complaint arising from a child who "was placed in a chair lift by an employee of the State who failed to secure and properly lock the belt intended to protect the occupant. As a result of this alleged negligent act, the infant Plaintiff became frightened and hysterical upon the descent, with consequential injuries." Id. at 240, 219 N.Y.S.2d 34, 176 N.E.2d 729.

While the elements of a NIED claim are repeated often in the case law analyzing same, they are frequently characterized in different ways. The first element is, of course, negligence. Additionally, there needs to be "some guarantee of genuineness" of the emotional injury. Ornstein v. New York City Health and Hosps. Corp. , 10 N.Y.3d 1, 6, 852 N.Y.S.2d 1, 881 N.E.2d 1187 [2008].

Negligence is sufficiently pled in the complaint as supplemented.

The "guarantee of genuineness" — element is met when the event causing emotional injuries is of the nature that those circumstances themselves serve as a sufficient guarantee that emotional injury would occur. Here, under the horrific circumstances described in the complaint, to the extent that the Plaintiff is required to plead a "guarantee of genuineness," having someone shot to death in front of her, splattered with the victim's blood and fearing the gun is being turned toward her certainly satisfies that element.

The other element, "directness" is expressed on occasion in terms of duty — i.e. the Defendant must have a "direct" duty to the Plaintiff.

"We disagree with the Plaintiffs’ contention that they may recover damages for negligent infliction of emotional distress merely because a direct duty was owed to them and a breach of that duty resulted in emotional injury." De Rosa v. Stanley B. Michelman, P.C. , 184 A.D.2d 490, 491, 584 N.Y.S.2d 202 [2d Dept. 1992]. (emphasis added).

In other cases, the "directness" is described in terms of causation:

"A breach of the duty of care resulting directly in emotional harm is compensable even though no physical injury occurred when the mental injury is a direct, rather than a consequential, result of the breach and when the claim possesses some guarantee of genuineness" ( Ornstein v. New York City Health & Hosps. Corp. , 10 N.Y.3d 1, 6, 852 N.Y.S.2d 1, 881 N.E.2d 1187 [citations and internal quotation marks omitted]). Ball v. Miller , 164 A.D.3d 728, 730, 83 N.Y.S.3d 169 [2d Dept. 2018]. (Emphasis added).

In expanding the scope of persons who may recover under the zone of danger branch of NIED cases, the Court of Appeals discussed the history and current law of NIED in both zone of danger and non-zone of danger circumstances. The rule in New York had originally been that recovery for "fright" was barred under Mitchell v. Rochester Ry. Co., 151 N.Y. 107, 45 N.E. 354 (1896).:

"As time marched on, the law continued to drift away from Mitchell . By the early 1960s, we acknowledged that the core of the Mitchell conclusion—namely, that recovery for injury resulting from "mere fright" is not permitted—had been "demolished many times" ( Battalla, 10 N.Y.2d at 240, 219 N.Y.S.2d 34, 176 N.E.2d 729 ). We also reconsidered the public policy underlying

Mitchell (see Battalla, 10 N.Y.2d at 240, 219 N.Y.S.2d 34, 176 N.E.2d 729 ). The review was circumspect, to be sure; we balanced the possibility that "fraud, extra litigation and a measure of speculation are, of course, possibilities" in the event of a claim for fright against our awareness of the folly of denying "a logical legal right and remedy in all cases because in some a fictitious injury may be urged as a real one" ( id. at 241, 219 N.Y.S.2d 34, 176 N.E.2d 729 ). Against the backdrop of those competing considerations, and while mindful of factors including "just[ice]," "experience[,] and logic" ( id. at 239, 219 N.Y.S.2d 34, 176 N.E.2d 729 ), we concluded that a Plaintiff "subjected to the fear of physical injury as a direct result of the tortious conduct" ( Howard v. Lecher, 42 N.Y.2d 109, 111, 397 N.Y.S.2d 363, 366 N.E.2d 64 [1977] ) may state a claim that he or she was "negligently caused to suffer ‘severe emotional and neurological disturbances with residual physical manifestations’ " when the Defendant owed the Plaintiff a direct duty, such as the one owed to the Plaintiff by the ski-lift operator at issue in that case ( Battalla, 10 N.Y.2d at 238—239, 219 N.Y.S.2d 34, 176 N.E.2d 729 ). By the late 1960s, we crystallized that point. There was "no longer any question" that, in some circumstances, "one may have a cause of action for ... negligently induced mental trauma without physical impact" ( Tobin v. Grossman, 24 N.Y.2d 609, 613, 301 N.Y.S.2d 554, 249 N.E.2d 419 [1969] )."

Greene v. Esplanade Venture Partnership , 36 N.Y.3d 513, 520-21, 144 N.Y.S.3d 654, 168 N.E.3d 827 [2021].

Thus, the Court of Appeals’ most recent discussion of NIED outlined the elements necessary for a non-zone of danger case: A person subjected to the fear of physical injury as a direct result of tortious conduct may recover for severe emotional trauma when a direct duty was owed to the Plaintiff by the Defendant. Thus, the Court of Appeals has described both the duty and causation as being necessarily "direct."

But regardless of how it is characterized, the question becomes when is the harm or duty "direct?"

Defendants characterize their argument as a lack of direct duty to the Plaintiff, a guest at their hotel.

There are a number of cases that describe when a "direct" duty or causation was found lacking:

In Nadal v. State , 110 A.D.2d 890, 488 N.Y.S.2d 442 [2d Dept. 1985] the Appellate Division found state Corrections officials had no direct duty to nearby homeowners for the actions of escaped inmates: "It is not necessary to pass upon claimants’ contention that the State owed a duty to nearby community residents to protect against foreseeable crimes committed by inmates who were either negligently or intentionally permitted to wander off at liberty, in view of the fact that the claimed consequential emotional injuries are not compensable under New York law ( Kennedy v. McKesson Co., 58 N.Y.2d 500, 462 N.Y.S.2d 421, 448 N.E.2d 1332 [(1983)] ; Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419 ). While the invasion of the sanctity of claimants’ home was understandably emotionally shocking, such injuries are compensable only when they are a direct, rather than a consequential, result of the breach of a duty ( Kennedy v. McKesson Co., supra )." Id. at 891, 488 N.Y.S.2d 442.

There is also a federal line of cases which has much more narrowly construed the "direct duty." For example, as cited by the Defendants, St. John v. Rein Teen Tours, Inc. 2000 WL 977685 (S.D.N.Y. 2000) held that a tour bus operator had no "direct duty" to an infant passenger. There are also a number of state and federal cases holding an employer/employee relationship is not the type of relationship that creates a "direct duty." See Offor v. Mercy Medical Center, et al. 171 A.D.3d 502, 98 N.Y.S.3d 69 [2019]. However, as Federal cases are not controlling (and this case does not involve an employee/employer relationship) those cases finding on duty are not persuasive.

The most recent case law from the Second Department, however, presents a broader view. The Appellate Division only a few months ago addressed an analogous case in the context of a CPLR § 3211 motion:

"The Plaintiff alleged that she and the infant sustained emotional injuries while on the premises of an automobile dealership owned by the Defendant Rallye Motors, LLC (hereinafter Rallye), arising from an encounter with another patron at the dealership." Cabrera v. Rallye Motors, LLC , 215 A.D.3d 729, 729, 185 N.Y.S.3d 697 [2d Dept. 2023].

[ ]

" ‘The test of the sufficiency of a complaint is whether it gives sufficient notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments’ " ( A.R. v. City of New York, 206 A.D.3d 768, 769, 170 N.Y.S.3d 180 [(2022)], quoting

Pace v. Perk, 81 A.D.2d 444, 449, 440 N.Y.S.2d 710 [(1981)] ; see CPLR 3013 ; Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 274—275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ). "Whether a Plaintiff can ultimately establish its allegations is not part of the calculus" ( EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26 [(2005)] ; see Sokol v. Leader, 74 A.D.3d 1180, 1181, 904 N.Y.S.2d 153 [(2010)] ). "Further, any deficiencies in the complaint may be amplified by supplemental pleadings and other evidence" ( AG Capital Funding Partners, L.P. v. State St. Bank & Trust Co., 5 N.Y.3d 582, 591, 808 N.Y.S.2d 573, 842 N.E.2d 471 [(2005)] ; see Solis v. Aguilar, 206 A.D.3d 684, 686, 170 N.Y.S.3d 139 [(2022)] ).

"A breach of the duty of care resulting directly in emotional harm is compensable even though no physical injury occurred when the mental injury is a direct, rather than a consequential, result of the breach and when the claim possesses some guarantee of genuineness" ( Ornstein v. New York City Health & Hosps. Corp., 10 N.Y.3d 1, 6, 852 N.Y.S.2d 1, 881 N.E.2d 1187 [citations and internal quotation marks omitted]; see Derago v. Ko, 189 A.D.3d 1352, 1354—1355, 134 N.Y.S.3d 801 [(2020)] ; Sawitsky v. State of New York, 146 A.D.3d 914, 915, 46 N.Y.S.3d 123 [(2017)] ). Absent specific types of negligence not at issue here, "the guarantee of genuineness generally requires that the breach of the duty owed directly to the injured party must have at least endangered the Plaintiff's physical safety or caused the Plaintiff to fear for his or her own physical safety" (

Taggart v. Costabile, 131 A.D.3d 243, 253, 14 N.Y.S.3d 388 [(2015)] [internal quotation marks omitted]; see A.R. v. City of New York, 206 A.D.3d at 770, 170 N.Y.S.3d 180 ; Santana v. Leith, 117 A.D.3d 711, 712, 985 N.Y.S.2d 147 [(2014)] ). "Where the acts of a third person intervene between the Defendant's conduct and the Plaintiff's injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the Defendant's negligence" ( Taggart v. Costabile, 131 A.D.3d at 256, 14 N.Y.S.3d 388 [citations and internal quotation marks omitted]).

Here, accepting the facts alleged in the second amended complaint as true and according the Plaintiff the benefit of every possible favorable inference, the second amended complaint, as amplified by the Plaintiff's affidavit, adequately alleged that the emotional injuries sustained by the Plaintiff

and the infant were the direct result of Rallye's breach of its duty to protect them from the foreseeable conduct of the patron they encountered on the dealership premises (see Davis v. Commack Hotel, LLC, 174 A.D.3d 501, 502—503, 104 N.Y.S.3d 171 [(2019)] ), that the patron's behavior toward them was a normal and foreseeable consequence of the situation created by Rallye's breach of its duty of care based on prior instances of similar behavior by that patron at the dealership (cf. Taggart v. Costabile, 131 A.D.3d at 256, 14 N.Y.S.3d 388 ), and that the encounter with the patron caused the Plaintiff and the infant to fear for their physical safety (cf. A.R. v. City of New York, 206 A.D.3d at 770, 170 N.Y.S.3d 180 ; Santana v. Leith, 117 A.D.3d at 712, 985 N.Y.S.2d 147 ).

Accordingly, the Plaintiff adequately stated a cause of action against Rallye to recover damages for negligent infliction of emotional distress."

Cabrera v. Rallye Motors, LLC , 215 A.D.3d 729, 729-31, 185 N.Y.S.3d 697 [2d Dept. 2023].

The underlying allegations in the pleading in Carera are not described in detail in the decision, but a review of the record and filings reveals that the claim involved many of the same type of allegations contained in the complaint filed in the instant matter, including failure to recognize and deal with a dangerous patron. In the Carera matter, the Plaintiff was a patron of the service department at the car dealership. While waiting for repairs, the Plaintiff's infant daughter went into a children's play area of the customer waiting area. In the play area, a man was taking drugs and watching pornography and was motioning towards the infant Plaintiff to come near him when the mother intervened and ran with the child from the room. The allegations were also that the dealership had prior similar encounters with the alleged perpetrator which put them on notice of his dangerous propensities.

Thus, it would seem that if a car dealership has a direct duty to its customer and her daughter waiting to get a car fixed, a hotel operator would have a direct duty to its hotel guests who are seeking a safe place to stay.

Defendants also quote Lauer v. City of NY, 95 N.Y.2d 95, 711 N.Y.S.2d 112, 733 N.E.2d 184 [(2000)], in which the Court wrote a Plaintiff must be able to "point the finger of responsibility at a Defendant owing, not a general duty to society, but a specific duty to him." Written in the context of a medical examiner's duty to a murder suspect, the case is clearly not analogous. But in the language used in Lauer , the hotel has a specific duty to the Plaintiff. That is, the duty here is a duty to their guests, a much more limited group than the general public.

Accordingly, the Court finds that the Plaintiff has pled sufficient allegations to sustain a claim for emotional damages.

II. "Moving Defendants did not have the ability and/or opportunity to thwart the attack and the attack was entirely unforeseeable."

Defendant's move to dismiss alleging that they were "not reasonably aware" of the need to thwart the criminal Defendant's attack and the attack was "entirely unforeseeable."

In this regard, the complaint contains the following allegations, among others:

48. "the Individual Defendants with one other unidentified third party, entered the Marriott, approached the front desk, and sought to check in to their room"

50. "the Corporate Defendants, through their employees, affiliates, and/or other representatives, bypassed industry-standard operating procedure and security protocols by ignoring the Individual Defendants, and acted as though the unidentified third party was the only guest of the Hotel."

51. "the Corporate Defendants did not seek, nor require the Individual Defendants to present a form of identification or provide any other customary check-in information. Instead, the Corporate Defendants only requested said information from the unidentified third party."

52. "Upon information and belief, unlike the Individual Defendants, whom both possessed luggage, the unidentified third party was empty handed."

53. "The Corporate Defendants afforded the Individual Defendants extra leeway and privileges, bypassed industry-standard operating procedures, and either relaxed or failed to enforce Marriott's inadequate security policies and procedures that were in place for the safety of their guests."

54. "Upon information and belief, despite the unidentified third-party's involvement during the check-in, and the Corporate Defendants’ understanding that the Individual Defendants were the only guests staying at the Hotel, Marriott personnel arranged for only the Individual Defendants to

be escorted to their first-floor room."

55. "Upon information and belief, before the Individual Defendants were escorted to their room, the unidentified third party left the lobby, exiting the Hotel and never to be seen again."

56. "Upon information and belief, over the next couple of hours and throughout the weekend, the Individual Defendants exited and re-entered the Hotel multiple times, transporting to their first-floor room, an arsenal of illegally modified firearms, bomb-making supplies and materials, ammunition, and other suspicious-looking bags, each time passing the front desk, and other Marriott personnel."

57. "Upon information and belief, Marriott has a strict no weapons and firearms policy. Consequently, the Corporate Defendants, through their employees, affiliates, and/or other representatives, voluntarily assumed, and continued to assume, at all times relevant hereto, a duty to protect their guests by prohibiting firearms at the Hotel, recognizing such prohibition as being necessary for the safety of their guests.

58. "The Corporate Defendants failed to enforce this policy against the Individual Defendants, which resulted in Plaintiff's injuries."

59. "Upon information and belief, not only were the Corporate Defendants

negligent in preventing the Individual Defendants’ from transporting firearms, bomb-making supplies and materials, and ammunition into the Hotel, but the Corporate Defendants, through their employees, affiliates, and/or other representatives, negligently escorted, delivered, carried and/or helped the Individual Defendants transport the prohibited weapons and other dangerous items to their room."

62. "Upon information and belief, the Individual Defendants both displayed signs of drug use and acted erratically when exiting and re-entering the Hotel in the presence of Marriott personnel."

63. "Upon information and belief, Defendant Johnson was seen roaming about the Hotel in the presence of Marriott personnel, wearing nothing but underwear, a trench coat, and a ski mask."

64. "Upon information and belief, the Corporate Defendants, through their employees, affiliates,

and/or other representatives, were aware of the individual Defendants’ suspicious activities and unlawful conduct, yet despite having notice, they not only failed to enforce their inadequate security policies, but also neglected to alert security, or contact law enforcement.

65. "The Corporate Defendants were on notice that their negligent conduct, and failure to exercise due care for the safety of their guests, including their failure to enforce their inadequate security policies, and Marriott's strict no weapons and firearms policy, would result in, and/or enable, conduct similar to that of the Individual Defendants’, thereby leaving their guests defenseless to harm."

66. "... and Marriott's strict no weapons and firearms policy, all in place for the safety of their guests, the Individual Defendants were able to exit and re-enter the Hotel at all hours of the night, each time gaining access to the lobby, and other entryways without having to provide any form of identification or utilize a keycard, and transport an arsenal of illegally modified firearms, bomb-making supplies and materials, and ammunition, into their first-floor room."

68. "The series of events that led to the murder of Paul Kutz and the Individual Defendants’ conspiracy to blow up the Hotel and/or staging a mass shooting would have been fully prevented if not for the negligence of the Corporate Defendants."

The Verified Pleading in the Hosteya matter adds, among other things, the following allegations:

"22. Upon information and belief, the Moving Defendant was aware of a rise in criminal activity on the premises, including gang activity, over the last decade.

23. Upon information and belief, the Moving Defendant was aware of a rise in instances of Hotel guests and visitors becoming so intoxicated that they have engaged in aggressive and disorderly conduct.

24. Upon information and belief, the Moving Defendant and Marriott personnel were informed of these increases in dangerous situations on the premises but refused to institute any security measures to protect employees and guests.

[ ]

27. As I looked over to see what was causing the commotion, I saw Defendant Johnson emerge from the corridor leading to the first-floor rooms with both hands deep into his pockets, wearing only underpants under his trench coat, a ski mask, and shouting profanities.

28. Defendant Johnson then proceeded to roam around the lobby, interacting

with Marriott personnel, all of whom appeared to know him, and laugh off his visibly erratic behavior.

29. After approximately ten minutes of this behavior, I tried to get the attention of several Marriott personnel to get them to stop laughing at Defendant Johnson and his alarming behavior.

30. At that point, Defendant Johnson pulled out a gun and began waving it in the air while shouting furiously."

At the pleading stage, these allegations are sufficient to sustain the complaint. Simply put, the allegations contain numerous allegations of the erratic, bizarre and criminal behavior of the individual Defendants over a course of time, in such a manner, as was or should have been known to the Defendants’ employees. Additionally, as alleged, the allegations are sufficiently pled to establish foreseeability and an opportunity on the Defendants’ parts to prevent the attack.

It is important to note that what must be alleged is not actual awareness of what was transpiring, but could reasonably be perceived.

"What the State actually knew plainly falls within the ambit of foreseeability. But the Appellate Division actual notice test precludes additional consideration of the State's constructive notice—what the State reasonably should have known —for example, from its knowledge of risks to a class of inmates based on the institution's expertise or prior experience, or from its own policies and practices designed to address such risks (see e.g. Schittino v. State of New York, 262 A.D.2d 824, 825—826, 692 N.Y.S.2d 760 [1999] ; Caruso v. County of Suffolk, 234 A.D.2d 495, 495—496, 652 N.Y.S.2d 58 [1996] ; Sebastiano v. State of New York, 112 A.D.2d 562, 564, 491 N.Y.S.2d 499 [1985] [Levine, J.]; see also Farmer v. Brennan, 511 U.S. 825, 843, 114 S.Ct. 1970, 128 L.Ed.2d 811 [1994] ). Claimant's testimony that the attack came as a complete surprise to him cannot be the measure of the duty of the State, as his

custodian, to safeguard and protect him from the harms it should reasonably foresee based on its knowledge derived from operation of a maximum-security prison.

The Appellate Division test, in short, improperly modifies the test for foreseeability from what is reasonably to be perceived, to what is actually foreseen, and thus unduly circumscribes the standard of care normally due any party: reasonable care under the circumstances (see Basso v. Miller, 40 N.Y.2d [233] at 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 [(1976)] ; Flaherty v. State, 296 N.Y. [342] at 346, 73 N.E.2d 543 [(1947)] )." Sanchez v. State of New York , 99 N.Y.2d 247, 254, 754 N.Y.S.2d 621, 784 N.E.2d 675 [2002]. (Emphasis added.)

Further, "[c]learly, whether a risk is foreseeable under a specific set of circumstances is generally a question best left to a trier of fact ( Rotz v. City of New York, 143 A.D.2d 301 [532 N.Y.S.2d 245 (1988)] )." Kahane v. Marriott Hotel Corp. , 249 A.D.2d 164, 165, 672 N.Y.S.2d 55 [1st Dept. 1998].

The Defendant cites Bensbeur v. Rihga Royal Hotel, 2012 WL 3698988 (2012) in support of their position, identifying it as one involving the issue of a hotel's responsibility to protect its guests from criminal activity. However, Bensbeur is clearly distinguishable. First, the dismissal was not at the pleading stage, and, secondly, the decedent/Plaintiff's own conduct was ultimately the cause of his own death.

Similarly, Cort v. Marshall's Department Store, 2015 WL 9582426 (E.D.N.Y. 2015) is unavailing. Cort involved an analysis of whether the store in question had sufficient notice of the probability of assaults on customers based on prior assaults by other perpetrators — in essence asking if there was a history of criminal behavior in the store by previous patrons. None was apparently alleged in the complaint. In the instant case, however, the allegations concern the behavior before the murder of these particular individual Defendants during their stay at the hotel and the staff at the hotel's knowledge of their suspicious activities, which is specifically pled in the complaint.

And again, the decision in Blatt v. New York City Hous. Auth. , 123 A.D.2d 591, 592, 506 N.Y.S.2d 877 [2d Dept. 1986], cited by the defendants, involved summary judgment, not dismissal at the pleading stage.

As to the ability to prevent the assault, the Defendants seek to limit the time period in consideration to the moments before the murder, alleging that things happened too rapidly to be prevented. However, it is clear that the allegations in the complaint (as supplemented) are of behavior by the individual Defendants over the course of several days that gave rise to the opportunity for hotel staff to remove them from the premises — where according to the complaint — they were not even entitled to be as they were not registered guests.

In their reply, the Defendants argue that their duty is to provide only "minimal security measures" for its guests. Again, in support of this argument, Defendants cite decisions made in the summary judgment context, not pleading stage. However, the cases cited make clear the standard is not "minimal security measures" but reasonable care. The standard is described in those cited cases as follows:

• "[The Hotel] nevertheless has a duty to exercise reasonable care to protect guests or tenants, while on the premises, against injury at the hands of third persons who are not employees of the hotel ( Barber v. Princess Hotels Intl., 134 A.D.2d 312, 313, 520 N.Y.S.2d 789 [(1987)] ), and is required to take reasonable protective measures, including providing adequate security, to protect guests or tenants against third-party criminal acts ( Pantages v. L.G. Airport Hotel Assocs., 187 A.D.2d 273, 589 N.Y.S.2d 426 ; Clarke v. J.R.D. Mgt. Corp., supra ), particularly where the occurrence of criminal activity on the premises was reasonably foreseeable ( Nallan v. Helmsley—Spear, Inc., 50 N.Y.2d 507, 519, 429 N.Y.S.2d 606, 407 N.E.2d 451 [(1980)] )." Penchas v. Hilton Hotels Corp. , 198 A.D.2d 10, 10-11, 603 N.Y.S.2d 48 [1st Dept. 1993].

• "Here, questions of fact exist as to whether Defendant should have reasonably foreseen a risk of harm to Plaintiff's decedent and should therefore have taken measures to provide more than a minimal level of security.* Clearly, whether a risk is foreseeable under a specific set of circumstances is generally a question best left to a trier of fact ( Rotz v. City of New York, 143 A.D.2d 301 )." Kahane v. Marriott Hotel Corp. , 249 A.D.2d 164, 165, 672 N.Y.S.2d 55 [1st Dept. 1998]. (emphasis added ).

• The reference to "minimal security measures" made in the case of Miller v. State , 62 N.Y.2d 506, 478 N.Y.S.2d 829, 467 N.E.2d 493 [1984], refers to keeping exterior doors locked as a precaution against the general potential of unknown intruders, not the

duty to protect from harm from by unregistered hotel occupants who present the indications of dangerousness as alleged in the complaint.

In Pantages v. L.G. Airport Hotel Assoc., Inc. , 187 A.D.2d 273, 589 N.Y.S.2d 426 [1st Dept. 1992], the Court described the standard for hotels: "While Defendant does not have a duty to protect the public in general against criminal acts, certainly it has a duty to prevent its premises from being used for the commission of a crime committed upon one of its guests, and, toward that end, it was incumbent upon Defendant to question the motel registrants and refuse them a room, if necessary." Pantages v. L.G. Airport Hotel Assoc., Inc. , 187 A.D.2d 273, 589 N.Y.S.2d 426 [1st Dept. 1992].

Further, the allegations in the complaint do not concern solely the hotel having breached their duty to their guests by failing to provide physical security such as lighting, locking doors, doormen or security guards, and those cases that discuss same are clearly not analogous. The allegations in the complaint involve removing occupants who, it is alleged, engaged in erratic behavior, brought firearms and bomb making materials into the hotel under circumstances the Defendants’ employees were or should have been aware of and failing to remove those occupants who had no right to be in the hotel from the facility, in addition to failing to provide several of the physical security features.

Reliance on cases in which the notice to the Defendants of criminal behavior is limited to the moments immediately preceding an attack are equally unavailing, such as Sugarman v. Equinox Holdings, Inc., 21 Misc.3d 1147[A], 2008 WL 5264642 affd 73 A.D.3d 654, 901 N.Y.S.2d 615 [2010]. Here, the allegations are that the erratic, criminal behavior started when the criminal Defendants initially entered the hotel and continued for up to several days eventually leading to the attack.

Accordingly, the Court finds that the Defendants’ motion to dismiss for lack of foreseeability and opportunity to prevent the attack must fail.

III. The complaint contains "duplicative counts."

Defendants maintain the Plaintiff's complaint contains "duplicative" counts or causes of action. As it concerns the corporate Defendants, the causes of action are labelled by the Plaintiff as follows: 1st Cause of Action: Negligence against Marriott International, Inc., Courtyard Management Corporation, Pizzagali Properties, LLC, and Clarion Partners, LLC.

2nd Cause of Action: Gross Negligence against Marriott International, Inc., Courtyard Management Corporation, Pizzagali Properties, LLC, and Clarion Partners, LLC.

3rd Cause of Action: Negligent hiring, retention and supervision against Marriott International, Inc., Courtyard Management Corporation, Pizzagali Properties, LLC, and Clarion Partners, LLC.

4th Cause of Action: Negligent hiring, retention and supervision against Marriott International, Inc. only.

5th Cause of Action: Premises liability against Marriott International, Inc., Courtyard Management Corporation, Pizzagali Properties, LLC, and Clarion Partners, LLC.

8th Cause of Action: Negligent Infliction of Emotional Distress against Marriott International, Inc., Courtyard Management Corporation, Pizzagali Properties, LLC, and Clarion Partners, LLC.

The Court finds that the labels attached to "counts" 4, 5 and 8 are duplicative in that they allege negligence, albeit under different theories.

To the extent that there are labelled in the complaint separate causes of action under "counts" 4, 5, and 8, they are dismissed as duplicative of "count" 1, but such dismissal shall not act to dismiss or remove any factual allegation as may appear under those headings, nor any preclusion of the legal theories of negligence described therein.

IV. Defendant CBM Two Hotels, LP seeks dismissal because it is an "out of possession" landlord.

Defendant CBM Two Hotels, LP, pursuant to CPLR § 3211 (a) (1) seeks dismissal on the additional grounds of being an out of possession landlord which is not contractually obligated to repair or maintain the premises.

Attached to CBM's moving papers is an affidavit of Loretta Traboldt who cites a lease agreement as a document establishing the defense. However, no such lease is attached. Instead, the Defendant invites the court to conduct an in camera review of the lease — for reasons that are not specified — in order to decide the motion. (Counsel for the Plaintiff and Defendant were apparently not able to come to terms on a confidentiality agreement). The Defendant essentially asks the Court to secretly dismiss the case without any input from the Plaintiff as to the substance of the basis for dismissal nor the reason she can not be heard as to the substance of the document that establishes the claim. This the Court will not do.

Therefore, it is hereby,

ORDERED, that the Defendants’ Marriott International, Inc., Courtyard Management Corporation, CBM Two Hotels LP motion to dismiss "duplicative" causes of action as pled in the complaint is granted to the extent indicated in this Decision and Order, and it is further,

ORDERED, that the Defendants’ Marriott International, Inc., Courtyard Management Corporation, CBM Two Hotels LP motion to dismiss the complaint pursuant to CPLR § 3211 (a) (7) are in all other respects DENIED, and it is further,

ORDERED, that Defendant CBM Two Hotels LP motion to dismiss the complaint pursuant to CPLR § 3211 (a) (1) is DENIED, and it is further,

ORDERED, that the Defendants shall file and serve an answer or answers to the complaint within 15 days of the date of this Decision and Order.