Opinion
2020–07097 Index No. 492/17
07-05-2023
Marcus KING, appellant, v. DIPLOMAT HOSPITALITY GROUP, LLC, respondent, et al., defendant.
Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant. Eric D. Feldman, Melville, NY (Scott W. Driver of counsel), for respondent.
Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant.
Eric D. Feldman, Melville, NY (Scott W. Driver of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., LARA J. GENOVESI, BARRY E. WARHIT, LILLIAN WAN, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Randy Sue Marber, J.), dated May 8, 2020. The order granted the motion of the defendant Diplomat Hospitality Group, LLC, for summary judgment dismissing the complaint insofar as against it.
ORDERED that the order is affirmed, with costs.
The plaintiff allegedly was injured while staying at a hotel owned by the defendant Diplomat Hospitality Group, LLC (hereinafter Diplomat), when an intruder attempted to enter a window of the ground-level room in which the plaintiff was staying and a struggle ensued until the intruder fled. The plaintiff commenced this action against Diplomat and another defendant, alleging, inter alia, that Diplomat was negligent in its security of the hotel premises. Diplomat moved for summary judgment dismissing the complaint insofar as asserted against it. The Supreme Court granted the motion. The plaintiff appeals.
"A possessor of real property is under a duty to maintain reasonable security measures to protect those lawfully on the premises from reasonably foreseeable criminal acts of third parties" ( Bryan v. Crobar, 65 A.D.3d 997, 999, 885 N.Y.S.2d 122 ; see Nallan v. Helmsley–Spear, Inc., 50 N.Y.2d 507, 519–520, 429 N.Y.S.2d 606, 407 N.E.2d 451 ; Davis v. Commack Hotel, LLC, 174 A.D.3d 501, 502, 104 N.Y.S.3d 171 ; Hartman v. Milbel Enters., Inc., 130 A.D.3d 978, 982, 15 N.Y.S.3d 125 ). "To establish foreseeability, there is no requirement that the past experience of criminal activity be of the same type as that to which the plaintiff was subjected" ( Bryan v. Crobar, 65 A.D.3d at 999, 885 N.Y.S.2d 122 ; see Jacqueline S. v. City of New York, 81 N.Y.2d 288, 294–295, 598 N.Y.S.2d 160, 614 N.E.2d 723 ; Davis v. Commack Hotel, LLC, 174 A.D.3d at 502, 104 N.Y.S.3d 171 ). However, "the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location" ( Novikova v. Greenbriar Owners Corp., 258 A.D.2d 149, 153, 694 N.Y.S.2d 445 ; see Davis v. Commack Hotel, LLC, 174 A.D.3d at 502, 104 N.Y.S.3d 171 ; Hartman v. Milbel Enters., Inc., 130 A.D.3d at 982, 15 N.Y.S.3d 125 ).
Here, Diplomat established its prima facie entitlement to judgment as a matter of law by demonstrating that the subject occurrence was not foreseeable, as Diplomat had no notice of the same or similar criminal activity occurring at a location sufficiently proximate to the subject premises (see Golub v. Louris, 153 A.D.3d 903, 904, 60 N.Y.S.3d 415 ; Beato v. Cosmopolitan Assoc., LLC, 69 A.D.3d 774, 776, 893 N.Y.S.2d 578 ; Soto v. 2101 Realty Co., 266 A.D.2d 529, 530, 699 N.Y.S.2d 107 ). The evidence submitted by the plaintiff in opposition, while showing evidence of prior criminal incidents on the subject premises, failed to raise a triable issue of fact as to foreseeability, as the prior incidents were not the same or similar to the subject occurrence (see Maria T. v. New York Holding Co. Assoc., 52 A.D.3d 356, 359, 862 N.Y.S.2d 16 ; Sepulveda v. Empire of Hempstead, 6 A.D.3d 603, 604, 774 N.Y.S.2d 825 ; Novikova v. Greenbriar Owners Corp., 258 A.D.2d at 153, 694 N.Y.S.2d 445 ).
Accordingly, the Supreme Court properly granted Diplomat's motion for summary judgment dismissing the complaint insofar as asserted against it.
BRATHWAITE NELSON, J.P., GENOVESI, WARHIT and WAN, JJ., concur.