Opinion
7220/07.
Decided September 17, 2009.
This is an action to recover damages for personal injuries allegedly sustained by Plaintiff, CASIME KELLY, (KELLY), when he was shot in the multi-family residential apartment building owned by Defendant, NORGATE DEVELOPMENT ASSOCIATES, L.P., (referred to herein as NORGATE), located at 390 Nostrand Avenue, Brooklyn, NY, in the early morning hours of December 30, 2006.
There were 215 residential apartments in the nine-story building. (Lambert Examination Before Trial, p. 25).
NORGATE is sued herein as "NORGATE BUSINESS ASSOCIATES a/k/a NORGATE DEVELOPMENT ASSOCIATION a/k/a NORGATE DEVELOPMENT ASSOCIATES".
Defendant ELITE INVESTIGATIONS, LTD., (ELITE) provided 24-hour security services in this dwelling.
Defendants ELITE and NORGATE, respectively, move for summary judgment to dismiss the claims and cross claims asserted against them.
THE INCIDENT
ELITE's security guard, Clinton Wilson, arrived at work at his post, in NORGATE's building, on the evening of December 29, 2006, at 11:30 P.M., when he relieved the guard previously on duty. Wilson immediately noticed approximately eight to ten young men already in the lobby area, who were loitering. (Wilson Examination Before Trial, p. 45-48, 98, 109-110).
Plaintiff KELLY arrived on December 29, 2006, at about 11:45 P.M., to visit with his friend Dorothea, who resided in Defendant NORGATE's building. Plaintiff, who did not reside at the premises, "walked right in" through the unlocked front door. (KELLY Examination Before Trial, p. 29, 57). KELLY also testified that anyone who wanted to enter NORGATE's building from the street would just walk right through the unlocked front door into this building. (KELLY Examination Before Trial, p. 29-30, 57-63, 124-26, 170).
ELITE was aware that the front-door's lock was broken for "a month or two" prior to this occurrence, as substantiated by ELITE's own witness, Wilson. This open-door problem had been reported; Wilson was told that "they" were "waiting on the system alarm people to fix the door." (Wilson Examination Before Trial, p. 35-44).
ELITE's glass security booth was located directly inside of the building's lobby: after "you walk in the front door, . . . the booth is right there, directly in front" of you. (KELLY Examination Before Trial, p. 33). A security guard is posted within that booth (KELLY Examination Before Trial, p. 121).
Without being asked to sign in, questioned, or stopped, by a security guard, KELLY proceeded passed the security booth, and through a second door, whose lock was also broken — as he had done many times before. (KELLY Examination Before Trial, p. 29-31, 57-63, 120-24). Wilson stated that the second door was also "supposed to be locked", but that lock had remained broken for two or three months prior to this incident. (Wilson Examination Before Trial, p. 37-44). In addition, Wilson admitted that it was the duty of the security guard to make sure that visitors "sign the sign-in sheet", prior to "buzz[ing] them into the building" through the second door. (Wilson Examination Before Trial p. 40).
The security guards' responsibility to sign-in visitors is evidenced by the written "Post Orders", which provide, in relevant part:
" Visitors must sign in. If no one answers the intercom, you may not let that visitor enter. Do not assume that the boy or girl friend is a tenant. Check your tenant listing. If you find yourself in a situation that you cannot handle, call the police department." [emphasis added]
( See "Post Orders"). The building's property manager, Fred Lambert, testified that visitors are "supposed to sign in with security before they go through the second door." (Lambert Examination Before Trial, p. 31-32).
ELITE's operations manager, Michael Cummings, confirmed that the security guards are instructed to require visitors to sign the visitors' log before permitting visitors to proceed through the second door, and, again, when exiting. Also, security guards are required to greet the people entering the building and find out the purpose of their presence in the building. (Cummings Examination Before Trial p. 69-70, 125-26).
However, although Wilson knew that it was part of the security guards' duty, he admitted that neither the guard on the shift preceding his, nor he, asked visitors to sign-in or out. Wilson's excuse for their failure to perform this duty was that they did not have sign-in sheets for several weeks. Wilson had requested blank sheets from his field supervisor, but did not receive them. (Wilson Examination Before Trial, p. 39-44, 101-102).
After walking through the second door, KELLY passed a group of ten to twelve young men who were hanging out in the lobby. They were drinking liquor; and smoking marijuana, surrounded by rolling tobacco paper. (KELLY Examination Before Trial, p. 63-64, 135-36. Detective Hennigan Examination Before Trial, p. 4, 20).
Wilson never asked the young men to leave, although he knew that it was his "job to tell them to leave"; and he knew that no one is allowed to be loitering in any part of the building. (Wilson Examination Before Trial, p. 98, 109-110. Lambert Examination Before Trial, p. 43-44). His job duty is memorialized in the "Post Orders" which provide that: "Tenants visitors and kids are not allowed to loiter the building." ( See "Post Orders". Cummings Examination Before Trial, p. 68-69). "No Loitering" signs were posted in the building's lobby. (Lambert Examination Before Trial, p. 43-44. Cummings Examination Before Trial, p. 115).
After visiting with his friend for approximately 20 minutes in a first-floor apartment, KELLY again encountered the same young men gathered near the lobby, "on [his] way finishing coming down the hallway to the steps to leave the building". The young men were loudly rapping and rhyming. They kept challenging KELLY to a rapping contest; but KELLY kept declining. KELLY states: "They started threatening me. Words started exchanging . . . And he [the shooter] pulled out the big gun and he said, do you want me to shoot you?" The other people were telling the shooter to "calm down, it don't have to be like this." (KELLY Examination Before Trial, p. 69-80, 137-38, 167-68).
(KELLY Examination Before Trial p. 67-69, 80). Movants failed to provide any photographs to the Court, making it difficult to visualize the scene of the incident. Although photographs were referred to in some of the depositions, none were included with the deposition transcripts submitted. ( See, e.g., Wilson Examination Before Trial, p. 104-109). According to Wilson, the shooting occurred in the walkway between Apartment S and R. (Wilson Examination Before Trial, p. 21).
Wilson was aware of the continuous presence of the gang of loud young men; Wilson merely asked them, once, at 12:35 A.M., to tone their voices down. At about 12:45 A.M., Wilson heard the gun shots while he was standing in his booth. From within his booth, in the back section, there was a glass through which he could have seen the young men and the area where they were located. (Wilson Examination Before Trial, p. 59-65, 73. Cummings Examination Before Trial, p. 65).
Wilson, who was employed as a security guard at that same location for six years, since late 2000, testified that he did not believe that the young men were tenants. (Wilson Examination Before Trial, p. 5, 13, 51-52). Wilson could not guess as to whether the young men were visitors: he did not have sign-in sheets that he could refer to and had not had any discussion about them with the guard whom he had relieved. (Wilson Examination Before Trial, p. 45-52, 63, 97-99, 101-102, 110).
Upon hearing the gunshots, afraid, Wilson sheltered for cover in the back of the booth. Wilson finally called the police, who arrived in about 3 minutes. (Wilson Examination Before Trial, p. 63-65).
ELITE's MOTION — Plaintiff as a Third-Party Beneficiary of the Security Agreement :
It has been established that an injured plaintiff may recover as a third-party beneficiary of a security contract when a defendant security company fails to perform a duty imposed by contract when it appears that the parties to the contract intended to confer a direct benefit on the alleged third-party beneficiary to protect him from physical injury. Kotchina v. Luna Park Hous. Corp ., 27 AD3d 696 (2d Dept. 2006).
In Kotchina, as here, the defendant security company provided security services for residential premises in which plaintiff was assaulted. The Court held: "Here, [the security company] Park Avenue's obligations under the contract were not limited to protecting property, and Park Avenue's president testified . . . that one of the duties of the security guards was to provide security for tenants of the premises." Thus, the security company's motion for summary judgment was properly denied, since it "failed to establish, prima facie, as a matter of law, that the plaintiff was not an intended third-party beneficiary of its contract with the building manager." Kotchina v. Luna Park Hous. Corp., supra, 27 AD3d at 696.
— ELITE's Duties:
Determination on ELITE's motion for summary judgment requires an examination of Defendant ELITE's duties in its business of being the exclusive provider of the 24-hour security inside of this residential premises. (Cummings Examination Before Trial, p. 6-8).
Significantly, with respect to the duties to be performed by ELITE, its area operations manager, Mr. Cummings, readily admitted that the security officers are instructed that they "should take whatever steps [they] are able to take that would safeguard the lives and property of those around" them. [emphasis added] (Cummings Examination Before Trial, p. 103).
This is consistent with Mr. Wilson's statement that his "main job duty is to protect lives and properties." [emphasis added] Wilson also acknowledges that he is supposed: "to make sure that people sign in whenever they come in, to try to keep the area clear, check all doors", and report problems in the building, such as unlocked doors. (Wilson Examination Before Trial, p. 15-16).
Cummings was familiar with written instructions, or protocol, for the subject property which he referred to as the "Post Orders" (Cummings Examination Before Trial, p. 55-56, 67). The "Post Orders" also include language evidencing that the safety of persons was contemplated: " the safety of this property and the tenants depends on you". [emphasis added] ( See Post Orders). Cummings summarized: "Ultimately, the responsibility of the security is with the security officer", and not the building's Superintendent. (Cummings Examination Before Trial, p. 161).
Thus, ELITE failed to even meet its initial burden, on its summary judgment motion, to show plaintiff was not an intended third-party beneficiary of its security contract. Defendant ELITE's own two witnesses: its operations manager (Cummings); and its long-time employee, the security guard on duty (Wilson); both specifically acknowledged that ELITE's duties included protecting lives of persons.
It is noted that the Honorable Patricia Williams, JSC, Bronx County, eloquently stated, in a case where she denied a security company's motion for summary judgment, as follows: "It would seem logical that the entire purpose of contracting with a security company to handle security for a residential complex is to protect the tenants of that complex and their guests and invitees. Accordingly, those persons would logically be the intended beneficiaries of the contract." Reyes v. Riverside, p. 5-6, Supreme Court, Bronx County, Index No.: 21492/2004, (that decision is available online on the Bronx County Clerk's website).
Accordingly, this case is factually distinguishable from Rahim v. Sottile Sec. Co. , 32 AD3d 77 (1st Dept. 2006). In Rahim, the written contract entered into by the security company expressly excluded any possible implication that the plaintiff Rahim could be its intended third-party beneficiary. The Rahim Court reasoned:
"In determining whether plaintiff is entitled to take his negligence case against [the security company] Sottile to trial, the "threshold question . . . is whether [Sottile] owed a duty of care to [plaintiff]" (Espinal, 98 NY2d at 138). To answer this question, we first look to . . . the [security] agreement between Duane Reade and Sottile."
Rahim v. Sottile Sec. Co., supra, 32 AD3d at 79-80. The Rahim Court found to be "of greatest significance in this case, . . . paragraph 10 [of the security agreement, which] provided: "It is expressly understood and agreed that this contract is entered into solely for the mutual benefit of the parties herein and that no benefits, rights, duties, or obligations are intended or created by this contract as to third parties not a signatory [ sic] hereto."" Rahim v. Sottile Sec. Co., supra, 32 AD3d at 78.
Furthermore, there was no dispute in Rahim on this point, since plaintiff Rahim, himself, had even: "testified that it was his understanding that the purpose of the guard's presence was to watch for shoplifters", and not to protect him. Rahim v. Sottile Sec. Co., supra, 32 AD3d at 79.
In a case where liability was imposed on a security company for a student's injury at a dormitory, the Court also held that defendant security company's "motion for summary judgment was properly denied, since the evidence which the [defendants] themselves presented created a triable issue of fact." Flynn v. Niagara Univ., 198 AD2d 262, 264 (2d Dept. 1993). The Flynn Court explained that:
"there is no merit to [defendants'] contention that they had no obligation to the plaintiff under the security services contract between them and Niagara University, because [of their allegation that] there was no language in the contract which indicated an intention to confer a direct benefit upon the plaintiff [citations omitted] . . . The contract does not specify the duties of the security guards, nor is there any language which would limit the duties of the guards to protection of property and not students (see, Bernal v Pinkerton's Inc., 52 AD2d 760, 382 NYS2d 769, affd 41 NY2d 938, 394 NYS2d 638, 363 NE2d 362). Indeed, there is language in the addendum to the contract which indicates that the guards' training included "First Aid" and "CPR", all of which suggests that the guards were hired to benefit, at least in part, the students on campus." [emphasis added]
Flynn v. Niagara Univ., supra, 198 AD2d at 264.
Similarly, in the case at bar, there is no written language which would limit the duties of the security guards to the protection of mere property, and not visitors. On the contrary, the explicit language in the "Post Orders" evidences that the security guards, posted inside of this residential building, were responsible to safeguard persons within.
As far as whether there is other applicable contractual language, it is noted that ELITE's Counsel provides no basis for his allegation that the document that he includes as his Exhibit "J" is the applicable security contract. This document, made between ELITE and Essex Management Company, is dated 15 years prior to this occurrence, (May 1991), and by its terms, it expired within 2 years, in 1993.
However, no written contract was identified by the sworn testimony of an officer or employee of ELITE, NORGATE, or Essex, having the requisite knowledge. Rather, ELITE's witness, its area operations manager, Mr. Cummings, testified that he was not aware that ELITE had entered into a written contract with respect to the subject premises. (Cummings Examination Before Trial, p. 6-8). In addition, NORGATE's witness, its property manager, Mr. Lambert of Essex Management Company, also, could not identify an alleged contract that was presented to him at his deposition. Lambert stated that he had never seen the document before. (Lambert Examination Before Trial, p. 39-40).
In this regard, it is axiomatic that "the bare affirmation of [a party's] attorney who demonstrated no personal knowledge of the [matter] . . . is without evidentiary value and thus unavailing." Zuckerman v. New York, 49 NY2d 557, 563 (1980).
Nevertheless, even assuming arguendo, that the document tendered by ELITE's Counsel was the contract in effect at the requisite time, it does not specify the duties of the security guards; but merely refers to "general security duties": checking "doors", reporting "incidents" and "hazardous conditions"; and performing "such other duties as are mutually agreed upon by the parties, that are reduced to writing, and are made available to the security officers assigned." It further generalizes that "the Contractor agrees that the security services covered by this agreement shall be performed in accord with accepted security practices and standards." ( See ELITE's Exhibit "J").
Even if this document were presented in admissible form, it does not limit the duties of the guards, as in the Rahim case, discussed , supra . On the contrary, in the case at bar, security was expected to be vigilant in checking that door locks were functioning, and warning of hazardous conditions. This suggests that the security guards were supposed to take security measures that would protect tenants and visitors against injury from intruders, and other dangerous conditions.
— ELITE's Breach of Duties:
In another recent case where a security company's motion for summary judgment was denied, the Court concluded that there were: "triable issues of fact whether defendant's employee exercised reasonable care in the discharge of his duty to safeguard bystanders." [emphasis added] Jackson v. Guardsmark, Inc. , 57 AD3d 1409 (4th Dept. 2008). In Jackson, the Court examined the "Mission Partnership Statement" between the the security company and premises owner, which imposed on the security company: "both a general duty to "provide for the welfare and safety of all [Kodak] employees" and a specific duty to "safeguard bystanders."" Jackson v. Guardsmark, Inc., supra, 57 AD3d at 1409. Based thereon, in Jackson, the Court rejected the defendant security company's:
"contention that plaintiffs were required to establish that the circumstances of this case fall within one of the exceptions to the nonliability of a contracting party to a third party set forth in Espinal v Melville Snow Contrs. ( 98 NY2d 136, 773 NE2d 485, 746 NYS2d 120). Rather, pursuant to the express terms of the Mission Partnership Statement, defendant "directly undertook to confer benefits" on plaintiff employees by seeing to their personal safety (Gonzalez v National Corp. for Hous. Partnerships, 255 AD2d 151, 152, 679 NYS2d 395, lv denied 93 NY2d 812, 717 NE2d 700, 695 NYS2d 541; see Kotchina v Luna Park Hous. Corp., 27 AD3d 696, 815 NYS2d 594 v Luna Park Hous. Corp., 27 AD3d 696, 815 NYS2d 594; see also Flynn v Niagara Univ., 198 AD2d 262, 264, 603 NYS2d 874; cf. Rahim v Sottile Sec. Co., 32 AD3d 77, 817 NYS2d 33)." [emphasis added]
Jackson v. Guardsmark, Inc., supra, 57 AD3d at 1409-10. In Jackson, plaintiffs alleged that "one of defendant [security company's] employees negligently directed plaintiff employees to drive a route that exposed them to [a chemical] emission." Jackson v. Guardsmark, Inc., supra, 57 AD3d at 1409.
In the case at bar, ELITE may also be found to have failed to exercise "reasonable care in the discharge of [its] duties to safeguard" visitors such as Plaintiff KELLY. Pursuant to the express statements of ELITE's own witnesses, (Cummings and Wilson), ELITE also apparently "directly undertook to confer benefits" upon tenants and visitors of the subject premises "by seeing to their personal safety".
The salient circumstances include that ELITE's round-the-clock security guards were physically stationed inside of this residential building, in position to bar intruders from entering, and gathering together, within its hallways. Because ELITE knew that the locks were broken on both doors for several months, ELITE should have been extra vigilant in screening persons who walked the route passed their security booth, so as to not expose tenants and visitors to harm from intruders. Instead, just the opposite is true, if we view the evidence in the light most favorable to Plaintiff, as we must on a summary judgment motion: ELITE's security guards allowed people, whom they could not identify as tenants or visitors, to freely enter through the broken front door, walk right passed their booth, through the second broken door, and gang together in the lobbies and hallways.
ELITE's security guards admittedly failed to have visitors sign in, or out, on the dates of the incident, and for several weeks prior thereto, and whenever else they ran out of paper. Thus, ELITE failed to fulfill its fundamental obligations; for instance, as Cummings explained, security guards were supposed to address the issue of the constant loiterers by remaining "vigilant", and continuing "to enforce the [post] orders that were already there, to try to identify those persons coming into the building and have them sign the visitor's log indicating they are visiting and that have permission from that person to enter the building. And that can be done through the intercom system or the tenant coming down. If they utilize their cell phones, that is what we instruct them to do." (Cummings Examination Before Trial, p. 61, 117).
( See KELLY Examination Before Trial, p. 124-26. See Wilson Examination Before Trial, p. 39-44, 101-102).
Because the guard on the prior shift had failed to follow basic protocol for signing-in visitors, Wilson laments that he could not determine if the group of young men, who were already there when he arrived, were intruders rather than visitors. Wilson also failed to question the guard whom he had relieved about this group of young men, despite the fact that Wilson did not recognize them to be tenants.
Wilson, himself, was aware of the presence of the group of young men, who were located a few feet from where he was stationed, for, at least, an hour and fifteen minutes. This was a large group of young men who, in the wee hours of the morning, were brazenly drinking and smoking; and vociferously rapping and threatening to kill plaintiff. Wilson could see, smell, and hear, them. Wilson admitted that part of his duties as a security guard was to deter criminal activity in the building, and that he could do so by asking loiterers to "leave the lobby area or call the police department." (Wilson Examination Before Trial, p. 31-32). Yet, Wilson never asked these young men to leave; and Wilson did not call the police until after the shots were fired.
ELITE did not present the testimony or affidavit of the guard on duty on the shift prior to Wilson, so does not inform us as to how long its employees were, actually, aware of the group's presence.
( See Wilson Examination Before Trial, p. 63-65). The security officers are instructed that they should call the police when they or " tenants or guests need police assistance" . [emphasis added] ( See Cummings Examination Before Trial, p. 71-72, 103)
Accordingly, ELITE is properly denied summary judgment herein since ELITE did not meet its burden on summary judgment to show that KELLY was not an intended third-party beneficiary of the security company's contract to provide security services inside of this residential building, and that ELITE exercised reasonable care in discharging its duties. Or, at the very least, there remain triable questions of fact regarding ELITE's duties and breach of those duties.
Therefore, the Court need not "look beyond the contract to determine whether there is evidence of any [other] circumstances that, under applicable precedent, could support a finding that [the security company] owed plaintiff a duty of care." Rahim, supra, 32 AD3d at 80.
— ELITE's duty to maintain the premises safely:
However, even assuming, arguendo, that the Court need look beyond the security agreement, it is noted that the Court of Appeals identified three other situations in which a party who enters a contract to render services may be said to have assumed a duty of care and be potentially liable in tort to injured plaintiffs. These are summarized by the Court of Appeals in Espinal v. Melville Snow Contrs., 98 NY2d 136 (2002), as follows:
"(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, 'launche[s] a force or instrument of harm' (Moch [Co. v Rensselaer Water Co., 247 NY 160, 168, 159 NE 896 (1928)]); (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties (see Eaves Brooks [Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, 226, 556 NE2d 1093, 557 NYS2d 286 (1990)]) and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely (see Palka [v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 589, 634 NE2d 189, 611 NYS2d 817 (1994)])."" [emphasis added]
Espinal v. Melville Snow Contrs, 98 NY2d at 140.
In determining whether a contracting party owes a duty to users of premises, the Court of Appeals guides us as follows in Palka v. Servicemaster Management Servs. Corp., 83 NY2d 579 (1994):
"duty is not something derived or discerned from an algebraic formula. Rather, it coalesces from vectored forces including logic, science, weighty competing socioeconomic policies and sometimes contractual assumptions of responsibility. These sources contribute to pinpointing and apportioning of societal risks and to an allocation of burdens of loss and reparation on a fair, prudent basis. . . .
This is not solely a matter between the parties to the contract. The arrangements between Servicemaster and Ellis Hospital plainly affect the safety of all users of the premises who are entitled to rely on the nonnegligent maintenance services and repair responsibilities imposed by the contract (see, White v Guarente, 43 NY2d 356; Dickerhof v Port Auth. of NY N. J., 174 AD2d 506, 507). Not uncommonly, parties outside a contract are permitted to sue for tort damages arising out of negligently performed or omitted contractual duties. . . .
Here, the functions to be performed by Servicemaster were not directed to a faceless or unlimited universe of persons. Rather, a known and identifiable group — hospital employees, patients and visitors — was to benefit and be protected by safety maintenance protocols assumed and acquired exclusively by Servicemaster. . . .
The record supports the conclusion that Servicemaster undertook a duty and breached the duty to inspect and manage the repair of wall-mounted fans. Nurse Palka was injured as a result of Servicemaster's negligent performance or nonperformance of that tort duty arising out of its extensive, exclusive maintenance contract. We hold that when a party contracts to inspect and repair and possesses the exclusive management and control of real or personal property which results in negligent infliction of injury, its assumed duty extends to noncontracting individuals reasonably within the zone and contemplation of the. intended safety services. The defendant's obligation in a case such as this is circumscribed, therefore, not merely by the contract but also in light of the duty imposed by law based on the interrelationship of all the parties, as framed by the evidentiary record." [emphasis added]
Palka v. Servicemaster Management Servs. Corp., 83 NY2d at 585-86, 589, 590.
Applying these principals to the case at bar, it can, likewise, be said that the security arrangements between ELITE and the owner/managing agent "plainly affect the safety of all users of the premises." The security functions to be performed by ELITE are directed to an "identifiable group": tenants and their visitors, who were "noncontracting individuals reasonably within the zone and contemplation of the intended safety services". Viewed in the light most favorable to the Plaintiff, the record supports the conclusion that ELITE exclusively undertook to provide tenants and visitors with competent on-site 24-hour security services. ELITE breached its "duty to maintain the premises safely" by failing to guard against entry by intruders; allowing crime to breed within.
ELITE was "ultimately" responsible for security. ( See Cummings Examination Before Trial, p. 6-8, 161).
— Proximate Cause:
It is well-established that: "the mere existence of an intervening criminal act by a third person will not completely absolve a defendant landlord or defendant's security service from liability where such defendants should have reasonably anticipated a risk of harm from criminal activity to persons on the premises." [emphasis added] Gilmartin v. Helmsley-Spear, Inc., 162 AD2d 275 (1st Dept. 1990).
In Gilmartin, as in the case at bar, defendant security services' company provided security service at a housing complex where plaintiff was injured, in the lobby, by an intruder. The Court denied the security company's motion for summary judgment, finding "questions of fact as to the [security] staff's change in shift procedures, which, along with other factors, allowed the complex to be unguarded for at least 15 minutes. It was during one of these shift changes that the robbery occurred." Gilmartin v. Helmsley-Spear, Inc., supra, 162 AD2d at 275.
Likewise, ELITE's motion for summary judgment is denied, since the security staff's lax screening and sign-in procedures — along with the broken locks and alleged crime and drug-infestation — left the building effectively unguarded, vulnerable to entry by intruders who could commit their crimes unfettered.
Relevant as to whether a risk of harm from criminal activity to persons on the premises could reasonably be anticipated is the history of violent crime about which security was aware, or should have been aware. For example, Wilson acknowledged that there had been other shootings within the building prior to this incident, including one on the fifth floor earlier in 2006 (the year of this occurrence). Also, Wilson knew that there was a prior incident where two children were beaten; and another incident when "somebody was cut [with a box cutter] right about the same place where the guy [Kelly] got shot." (Wilson Examination Before Trial, p. 66, 84-88, 100-101). Wilson himself had called the police to the building about 12 times in 2006. (Wilson Examination Before Trial, p. 32).
( See e.g., Plaintiff's Opposition, Exhibit "2" [Criminal complaints] and Exhibit "3" [Report by Plaintiff's expert, David Johnston, CPP]).
Moreover, Detective Hennigan testified that, in his experience in this precinct, this building "is a known outside and inside location for drug sales"; there were numerous complaints about drug dealing inside the lobby and apartments, well as in the doorways and outside. Also, Detective Hennigan was "aware of loitering in the building, from personal experience", when he "responded to that building for other investigations." (Detective Hennigan Examination Before Trial, p. 26-27, 78-82). In addition, for instance, KELLY himself had recently witnessed "people selling drugs and smoking and drinking in the lobby." (KELLY Examination Before Trial, p. 131-33).
NORGATE's Cross Claims Against ELITE
It is well-established that an owner may still maintain its cross claims for indemnification and contribution, against its security company, even if it is determined that plaintiff is not the third-party beneficiary of the security contract and if plaintiffs' direct claims against defendant security company are dismissed. Wayburn v. Madison Land Ltd. P'ship, 282 AD2d 301, 305 (1st Dept. 2001). In Wayburn, as here, questions of fact "as to reasonableness of the security measures themselves" were raised by the evidence of "the lax sign-in procedure used by guards at [the premises which] essentially left the building wide open to . . . intruder[s]". Wayburn v. Madison Land Ltd. P'ship, supra, 282 AD2d at 304.
As a procedural matter, in Wayburn, the cross claims were deemed converted to third-party claims.
Thus, even assuming, arguendo, that it is ultimately determined that the ELITE, in its security agreement with the building owners, did not expressly assume any protective duty enforceable by visitors, NORGATE's cross claims against ELITE would still remain viable. Anokye v. 240 E. 175th St. Hous. Dev. Fund Corp. , 16 AD3d 287 , 288 (1st Dept. 2005). In Anokye, as in the case at bar, the defendant security company had an agreement with the owners/ managing agents of a residential dwelling to provide security services; and plaintiff was the victim of the criminal acts of intruders. The Court held that: "summary judgment on the [building owner's] third-party claim [against the security company] is not appropriate . . . in view of triable issues as to whether the [plaintiff's] decedent's harm was in fact proximately caused by a failure of the security company to perform the obligations it assumed in its contract with the building owners." Anokye v. 240 E. 175th St. Hous. Dev. Fund Corp., supra, 16 AD3d at 288.
In Anokye, the evidence indicated "that the contracted-for security guard was not present at his lobby post at the time of the incident", despite the fact that "the locks to the lobby doors were not working, . . . and . . . the building had been the scene of drug and other criminal activities, including burglaries". Anokye v. 240 E. 175th St. Hous. Dev. Fund Corp., supra, 16 AD3d at 288. Likewise, ELITE is alleged to have carried out its duties so perfunctorily, with such minimum effort or reflection, that it is as if they were not even present at their lobby post.
Along this vein, more recently, the First Department, again, recognized the viability of a building owner's cross claim against a security company; holding: "With respect to the [owner's] cross claim, since the contract does not specify the services to be furnished, it cannot be conclusively determined, on the basis of the documentary evidence, whether the [security] company was negligent in the performance of the contracted services, and, if so, whether such negligence contributed to the murders. Should the owner show such negligence and causation, it would have, under the contract, a cause of action against the company for contribution." Sprung v. Command Sec. Corp. , 38 AD3d 478 (1st Dept. 2007).
Accordingly, that part of ELITE's motion which seeks to dismiss NORGATE's Cross Claims against ELITE is denied.
NORGATE's CROSS MOTION
The Court of Appeals has established that: "a plaintiff who sues a landlord for negligent failure to take minimal precautions to protect tenants from harm can satisfy the proximate cause burden at trial even where the assailant remains unidentified, 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, 551 (1998).
In the case at bar, Plaintiff "present[s] evidence from which intruder status may reasonably be inferred."Most significantly, the locks to the entrance doors were broken; so "people just come in" the building. Wilson did not recognize the shooter to be a tenant. The security guards at their posts failed to sign-in, and screen, visitors. Under all of the circumstances alleged, there is a "valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion" that the assailant, who entered and left the building through a negligently maintained door, was an intruder." Burgos v. Aqueduct Realty Corp., supra, 92 NY2d at 552.
Burgos v. Aqueduct Realty Corp., supra, 92 NY2d at 552.
(Wilson Examination Before Trial, p. 43-44).
It is well-settled that "landlords have a duty to take minimal precautions against foreseeable criminal activity by third parties . . . Where this duty is breached, a tenant who is victimized by a criminal in the building may recover damages from the landlord." Carmen P. v. PS S Realty Corp., 259 AD2d 386, 388 (1st Dept. 1999), citing Jacqueline S. v. City of New York, 81 NY2d 288, 294 (1993).
In Carmen P., as in the case at bar, the lock on the front door of the apartment building had been broken for several months preceding the plaintiff's assault.
( See Wilson Examination Before Trial, p. 35-44).
The circumstances herein are also similar to those in Jacqueline S., in that there was evidence that the subject residential apartment building was "an intruder-infested building"; and that "intruders . . . could be found "all over the place . . . doing drugs"". Jacqueline S. v. City of New York, supra, 81 NY2d at 295.
( See Detective Hennigan Examination Before Trial, p. 26-27, 78-82).
Moreover, it is also clear that:
" The obligation imposed on the possessor of land to exercise reasonable care to undertake protective measures to safeguard persons on its property from assault by third parties does not depend on a plaintiff's status as tenant, business invitee or mere visitor (Nallan v Helmsley-Spear, Inc., supra, at 519-520; Basso v Miller, 40 NY2d 233). Moreover, whether particular precautions are adequate to fulfill the landlord's obligation is almost always a question of fact for the jury based upon the nature of risk presented and the availability of security measures (Nallan v Helmsley-Spear, Inc., supra, at 520, n 8; Carroll v Ar De Realty Corp., 167 AD2d 216; Gilmartin v Helmsley-Spear, Inc., 162 AD2d 275; Loeser v Nathan Hale Gardens, 73 AD2d 187, 190-191)." [emphasis added]
Garrett v. Twin Parks Northeast Site 2 Houses, Inc., 256 AD2d 224, 226 (1st Dept. 1998).
Accordingly, NORGATE is not entitled to summary judgment dismissing Plaintiff's complaint against it.
Nevertheless, even if NORGATE's Cross Motion did not deserve to be denied on the merits, it would nevertheless be denied because it was made late.
CPLR § 3212(a) provides that a summary judgment motion " shall be made no later than 120 days after the filing of the Note of Issue, except with leave of court on good cause shown." [emphasis added]
In Brill, the Court of Appeals "clearly and decisively" held that:
Perini Corp. v. City of New York (Department of Envtl. Protection) , 16 AD3d 37 , 38 (1st Dept. 2005). "By virtue of the clear intent and unequivocal language in Brill and Miceli, the motion court should not have considered prejudice and judicial economy, and it should have held defendant accountable for its unexplained delay." Id.
good cause' in CPLR 3212(a) requires a showing of good cause for the delay in making the motion — a satisfactory explanation for the untimeliness — rather than simply permitting meritorious, non-prejudicial filings, however tardy . . . No excuse at all, or a perfunctory excuse, cannot be good cause'. . . . The present scenario, another example of sloppy practice threatening the integrity of our judicial system, rests . . . on the violation of legislative mandate. [emphasis added]
Brill v. City of NY, 2 NY3d 648, 652-53 (2004).
The Plaintiff's Note of Issue was filed on, or about, February 27, 2008.
However, NORGATE waited until August 1, 2008 to serve the instant untimely motion — which was more than one month past the deadline, and more than 5 months after the filing of the Note of Issue.
( See "Affidavit of Service" of the Defendant NORGATE's instant motion by Lola Joseph).
NORGATE failed to request leave of court to make its motion late. NORGATE attempts to excuse its delay by referring to some outstanding discovery pertaining to Plaintiff's continuing medical treatment. However, Defendant failed to articulate how such allegedly "outstanding discovery prevented [defendant] from making a timely motion for summary judgment." Jackson v. Jamaica First Parking, LLC , 49 AD3d 501 (2d Dept. 2008).
( See "Notice of Motion", where NORGATE does not request leave to make its motion late).
A defendants' motion to extend the time to make their summary judgment was properly denied, where: "the requested discovery was not essential to the motion . . . and . . . did not "provide the evidentiary basis for [defendant's] motion for summary judgment" ". Lo Grasso v. Myer, 16 AD3d 1089, 1090 (4th Dept. 2005). In another case, a defendants' motion to extend the time to make their summary judgment was properly denied, where "defendants fail to establish why they should not be considered complicit in the failure to timely obtain the disclosure . . . and [defendants'] further fail to establish how the outstanding disclosure impeded, in a material way, their ability to timely move for summary judgment." Weiss v. Finkelstein, 12 Misc 3d 1189A, 824 NYS2d 767 (Nassau Sup. Ct. 2006).
More recently, the Court of Appeals reiterated: "as we made clear in Brill, and underscore here, statutory time frames — like court-ordered time frames — . . . are not options, they are requirements, to be taken seriously by the parties. Too many pages of the Reports, and hours of the Courts, are taken up with deadlines that are simply ignored." [emphasis added] Miceli v. State Farm , 3 NY3d 725, 726-27 (2004).
Even if NORGATE's Cross Motion had merit — which it does not — it is well-established that, whether the motion has merit, standing alone, does not constitute good cause within the meaning of CPLR § 3212(a). If it did, "the statutory deadline would be circumvented and the practice of delaying such motions until the eve of trial encouraged." Miceli, supra, 3 NY3d at 726.
Moreover, the "deadline for filing summary judgment motions must be strictly followed, and courts may not excuse a late motion, no matter how meritorious, upon a perfunctory claim of law office failure." Azcona v. Salem , 49 AD3d 343 (1st Dept. 2008). See Rahman v. Domber , 45 AD3d 497 (1st Dept. 2007).
See also Giandana v. Providence Rest Nursing Home , 38 AD3d 295 (1st Dept. 2007). The Court of Appeals also recently held that: "Litigation cannot be conducted efficiently if deadlines are not taken seriously, and we make clear again, as we have several times before, that disregard of deadlines should not and will not be tolerated (see Miceli v State Farm Auto. Ins. Co., 3 NY3d 725, . . . [2004]; Brill v City of New York, 2 NY3d 648, . . . [2004]; Kihl v Pfeffer, 94 NY2d 118, . . . [1999])." Andrea v. Arnone, Hedin, Casker, Kennedy Drake, Architects Landscape Architects, P.C. (Habiterra Assocs.) , 5 NY3d 514 , 521 (2005).
Accordingly, ELITE's Motion, and NORGATE's Cross Motion, are denied. This constitutes the decision and order of this Court.