Opinion
108017/2010.
May 8, 2011.
Motion sequence numbers 001 and 002 are consolidated for disposition.
In motion sequence number 001, defendants Cooper Investors, Inc., T.W. Wang, Inc., and Cooper Hotel Investors, LLC (the Hotel Defendants) move for an order, pursuant to CPLR 3211 (a) (5), dismissing the complaint based upon the statute of limitations. In motion sequence number 002, defendant Goldfarb Abrandt Salzman Kutzin, LLP, sued here as Goldfarb, Abrandt, Salzman Kutzmin, LLP (GASK), moves for an order, pursuant to CPLR 3211 (a) (2) (3) (4) (5) (7) and (10), dismissing the complaint, or alternatively, dismissing the complaint until plaintiff's damages become ripe for judicial review.
In this wrongful death and personal injury action, plaintiff Sharon L. Ross, the administrator of the Estate of Robert F. Ross (Ross), alleges that on December 4, 2004, Ross was shot by defendant Saravanos (Saravanos), while on the premises of a hotel located in Queens, New York, owned, operated, managed and maintained by the Hotel Defendants. Plaintiff further alleges that Ross died that day, as a result of being shot by Saravanos. On November 19, 2009, Saravanos pled guilty to First Degree Manslaughter (Penal Law 125.20), and on December 15, 2009, he was sentenced to 13 years in prison and five years of post-release parole supervision.
On or about December 5, 2005, the Surrogate's Court issued to plaintiff Letters of Guardianship (of property) of Elijah Franklin Osman Ross, the son of Robert L. Ross. On or about July 30, 2009, the Surrogate's Court issued Letters of Administration of the property of the Estate of Robert F. Ross to plaintiff.
Plaintiff filed this action against the Hotel Defendants and GASK on June 17, 2010. Plaintiff alleges that the Hotel Defendants owed a duty to its guests, were negligent in permitting Saravanos to enter the hotel and remain on the premises, and failed to take reasonable precautions to insure the safety of its guests. With respect to GASK, plaintiff alleges that she had retained the defendant law firm to represent her in connection with her efforts to obtain the Letters of Guardianship and Letters of Administration, and that GASK knew or should have known that she intended to file litigation in connection with Ross's death, but that the law firm failed to inform her of applicable statutes of limitation and tolling provisions for personal injury and wrongful death actions. Plaintiff further alleges that this failure by GASK constitutes legal malpractice.
Motion Sequence Number 001
The Hotel Defendants move to dismiss the complaint arguing that the claims are barred as against them by the two-year statute of limitations for wrongful death. Section 5-4.1 (1) of the Estates Powers Trusts Law (EPTL) provides that the duly appointed personal representative of a decedent may maintain an action for wrongful death, however it must be commenced within two years of the decedent's death. When the sole distributee is an infant, CPLR 208 tolls the statute of limitations "until the earliest moment there is a personal representative . . . who can bring the action." Heslin v County of Greene, 14 NY3d 67, 75 (2010) (internal quotation marks and citation omitted). The Hotel Defendants argue that, here, the tolling period ceased on December 5, 2005, when the Surrogate's Court issued letters of Guardianship of Elijah Franklin Osman Ross to plaintiff. Thus, according to the Hotel Defendants, the statute of limitations for the wrongful death action ran on December 5, 2007, and this action, which was filed on June 17, 2010, must be dismissed as against them.
In its reply memorandum, the Hotel Defendants explain that they did not specifically move to dismiss the estate's claim for negligence on behalf of the decedent because the complaint did not make it clear that such a claim was asserted. However, they maintain that dismissal of this claim is covered in their notice of motion, which seeks to dismiss "all claims" against them.
In response, plaintiff argues that, pursuant to CPLR 215 (8), the statute of limitation with respect to the Hotel Defendants did not run until one year after the criminal prosecution against Saravanos was completed. CPLR 215 (8) provides as follows:
[w]henever it is shown that a criminal action against the same defendant has been commenced with respect to the event or occurrence from which a claim governed by this section arises, the plaintiff shall have at least one year from the termination of the criminal action as defined in section 1.20 of the criminal procedure law in which to commence the civil action, notwithstanding that the time in which to commence such action has already expired or has less than a year remaining.
Plaintiff relies on the case of Alford v St. Nicholas Holding Corp. ( 218 AD2d 622 [1st Dept 1995]), in which the Appellate Division, First Department held that CPLR 215 (8) applied to extend the statute of limitations, not merely to a civil action filed by the victim of the crime against the criminal defendant/wrongdoer, but to a civil action against the employer of the wrongdoer, based on respondeat superior, as well. According to the Court, one of the purposes behind CPLR 215 (8) is to relieve the victim of the crime of "the burden of participating simultaneously in two totally separate legal proceedings based on identical facts in order avoid the expiration of the Statute of Limitations in the civil action." Id. at 622. Thus, the court concluded that "the statutory language, which requires that the two proceedings be against 'the same defendant,' is broad enough to include persons so related to the criminal defendant as to be vicariously liable for his or her intentional torts." Id.
The Hotel Defendants argue that the decision of First Department in Alford has received a "less than warm welcome" outside of the First Department; however, the court notes that the decisions in the Second and Fourth Departments limiting the applicability of CPLR 215 (8) to the actual criminal defendants (see Villanueva v Comparetto, 180 AD2d 627 [2d Dept 1992] and Jordon v Britton, 128 AD2d 315 [4th Dept 1987]) preceded Alford and were expressly rejected by the First Department, not vice versa. In any case, since this court is in the First Department, it must follow First Department decisions.
Plaintiff argues that hotels, like landlords, have a nondelegable duty to take minimal precautions to protect the safety of their guests from reasonably foreseeable criminal acts (see e.g. Tarter v Schildkraut, 151 AD2d 414, 415 [1st Dept 1989]), and that pursuant to CPLR 1602 (2) (iv), joint and several liability arising from non-delegable duties is treated similarly to liability arising by reason of respondeat superior. Plaintiff cites Rangolan v County of Nassau ( 96 NY2d 42) which states that "CPLR 1602 (2) (iv) is a savings provision that preserves principles of vicarious liability." 96 NY2d at 47. The decision also goes on to state that section 1602 (2) (iv) "ensures that a defendant is liable to the same extent as its delegate or employee" (id.), and, therefore, a municipality which has delegated its duty to maintain the roads to an independent contractor, is responsible for the work of its contractor. Plaintiff argues that, like an employer which is liable, pursuant to respondeat superior, the Hotel Defendants are subject to joint and several liability, and therefore, the interpretation of CPLR 215 (8) by the Appellate Division, First Department, should be applied to the Hotel Defendants.
The Hotel Defendants concede in reply that their liability may be joint and several with the shooter.
Plaintiff further argues that there are basic policy reasons, similar to those mentioned by the Court in Alford, to apply section 215 (8) to this action against the Hotel Defendants. Plaintiff contends that if she had filed a separate civil suit against the Hotel Defendants prior to the completion of the criminal case against Saravanos, as a practical matter, that civil action would, doubtless, have been stayed, because of the likelihood that Saravanos would rely on his Fifth Amendment rights to resist testifying in the civil action, and the prosecutor's interest in maintaining the secrecy of the grand jury proceeding and not exposing prosecution witnesses to examination prior to the resolution of the criminal proceedings.
Plaintiff's argument regarding the practical reasons for not requiring two separate civil actions has considerable merit. However, the question before this court is not whether joint and several liability applies but rather, whether, as the Court stated in Alford, the Hotel Defendants are "persons so related to the criminal defendant as to be vicariously liable for his or her intentional torts" (Alford v St. Nicholas Holding Corp., 218 AD2d at 622), or whether Alford should be extended to the facts here.
Plaintiff concedes that the Hotel Defendants liability would not be vicarious. A hotel owner has a separate and independent "duty to provide reasonable security to protect its guests against criminal acts where such acts are reasonably foreseeable." Rednour v Hilton Hotels Corp. 283 AD2d 221, 222 (1st Dept 2001); see also Kahane v Marriott Hotel Corp., 249 AD2d 164, 165 (1st Dept 1998)("Although an innkeeper, as a landowner, is not an insurer against the risk of intrusion or theft upon its premises for the safety of its guests . . . it 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 . . . and is required to take reasonable protective measures, including providing adequate security, to protect guests or tenants against third-party criminal acts . . . particularly where the occurrence of criminal activity on the premises was reasonably foreseeable"[internal quotation marks and citations omitted]). As noted by the Hotel Defendants, vicarious liability generally only applies to preexisting relationships between the wrongdoer and the person on whom liability is sought to be imposed, where one party has the authority to control the actions of the other (as in an employer-employee relationship), and therefore is responsible for the other's wrongdoing, or where a statute allocates the loss from the actual wrongdoer to another party, as a landlord that is liable under the Multiple Dwelling Law for the negligence of an independent contractor hired to maintain its building in good repair (Jacobson v 142 E. 16 Co-op. Owners, Inc., 295 AD2d 211 [1st Dept 2002]) or a property owner or contractor that is liable under the Labor Law for the negligence a contractor or subcontractor. Rizzuto v L.A. Wenger Contr. Co., Inc., 91 NY2d 343, 348 (1998). Accordingly, it is clear that the facts of this case do not fall within the ambit of Alford.
The court declines to extend Alford beyond its facts, because the Hotel Defendants and the shooter cannot be deemed the "same defendant." Interestingly, in 2006, at the same time that the Legislature amended CPLR 215(8), the Legislature added a five year period for civil actions against "defendants" under CPLR 213-c. Defendants were specifically defined to "mean only a person who commits the [sexual] acts described." Yet, despite the conflict in the case law involving CPLR 215(8), the Legislature did not clarify that the "same defendant" was limited, as the defendant in CPLR 213-c was, to the perpetrator. Accordingly, the Legislative history provides support for the conclusion that "the same defendant" does not have to be the same person. However, "legislative intent is to be ascertained from the words and language used, and the statutory language is generally construed according to its natural and most obvious sense without resorting to an artificial or forced construction" ( McKinney's Cons Law of NY, Book 1, Statutes § 94) . In order to give the words "same defendant" natural meaning, without resort to forced construction, this court cannot extend the rationale or holding in Alford to the facts of this case, because the Hotel Defendants and the shooter cannot be declared the equivalent of the "same defendant."
Plaintiff also argues that the claims against the Hotel Defendants are timely under CPLR 213-b, which extends the statute of limitations for personal injury actions brought by victims of a crime, against "a defendant: (1) convicted of a crime which is the subject of such action." CPLR 213-b. However, as the Court ruled in Vasquez v Wood ( 18 AD3d 645, 646 [2d Dept 2005]), the Hotel Defendants have not been convicted of a crime, and there have been no cases which broaden the applicability of this provision as the First Department has broadened CPLR 215 (8) in Alford.
Accordingly, the motion to dismiss is granted.
Motion Sequence Number 002
Plaintiff alleges that the failure by GASK to inform her of the applicable statute of limitations for her claim against the Hotel Defendants constitutes legal malpractice. GASK moves to dismiss the complaint as against it contending that since plaintiff has argued that the statute of limitations has been tolled by operation of either CPLR 215 (8) or CPLR 213-b, and, thus, her case against the Hotel Defendants was timely commenced, she should not be permitted to simultaneously argue that GASK has committed malpractice by failing to apprise her of the proper statute of limitations. Plaintiff may however assert alternate causes of action even though they may be inconsistent. See CPLR 3014.
Alternatively, GASK argues that a claim for legal malpractice requires "proof of the attorney's negligence, a showing that the negligence was the proximate cause of the injury, and evidence of actual damages" (Russo v Feder, Kaszovitz, Isaacson, Weber, Skala Bass, LLP, 301 AD2d 63, 67 [1st Dept 2002]) and, therefore, until the court determines whether plaintiff's claim against the Hotel Defendants is timely, her malpractice claim is premature. See Frederick v Meighan, 75 AD3d 528, 532 (2d Dept 2010)("the plaintiff did not sustain 'actionable injury"' until the court ruled for the buyer in the underlying action).
However, the question of the statute of limitations has been decided, and plaintiff's claim for legal malpractice against GASK is not premature. In any event, it is not clear why dismissal would have been the appropriate remedy, as opposed to a stay of the legal malpractice action.
Accordingly, it is hereby
ORDERED on Motion Sequence Number 001, that the motion of defendants Cooper Investors, Inc., T.W. Wang, Inc., and Cooper Hotel Investors, LLC to dismiss the complaint against them, based on the statute of limitations is granted; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment in favor of the above defendants, after severing them from the action; and it is further
ORDERED on Motion Sequence Number 002, that the motion of defendant Goldfarb, Abrandt, Salzman Kutzmin, LLP is denied.
This Constitutes the Decision and Order of the Court.