Opinion
No. 336/09.
2013-05-3
Dominique SIMMONS, Plaintiff, v. KINGSTON HEIGHTS APARTMENTS, L.P., et al., Defendants.
Rudyard F. Whyte, Esq., The Cochran Firm, New York, Attorney for Plaintiff. Robert F. Bernstein, Jr., Esq., Baker Greenspan Bernstein, Bellmore, Attorney for Defendant.
Rudyard F. Whyte, Esq., The Cochran Firm, New York, Attorney for Plaintiff. Robert F. Bernstein, Jr., Esq., Baker Greenspan Bernstein, Bellmore, Attorney for Defendant.
Robert M. Ortiz, Esq., Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, Attorney for Third–Party Defendants.
DAVID I. SCHMIDT, J.
The following papers numbered 1 to 5 read on this motion:
+-----------------------------------------------------------------------------+ ¦Papers ¦Numbered ¦ +------------------------------------------------------------------+----------¦ ¦Notice of Motion/Order to Show Cause/Petition/Cross Motion and ¦1–2 ¦ ¦Affidavits (Affirmations) Annexed ¦ ¦ +------------------------------------------------------------------+----------¦ ¦Opposing Affidavits (Affirmations) ¦3–4 ¦ +------------------------------------------------------------------+----------¦ ¦Reply Affidavits (Affirmations) ¦5 ¦ +------------------------------------------------------------------+----------¦ ¦Affidavit (Affirmation) ¦ ¦ +------------------------------------------------------------------+----------¦ ¦Other Papers ¦ ¦ +-----------------------------------------------------------------------------+
Upon the foregoing papers, defendants Kingston Heights Apartments L.P. (Kingston Heights) and Shinda Management Corp. (Shinda) (collectively, the Kingston defendants) cross-move, in effect, for a motion granting summary judgment in their favor dismissing the complaint as against them.
BACKGROUND AND CONTENTIONS
The instant cross motion arises out of a lawsuit commenced by plaintiff Dominique Simmons (Simmons) to recover damages for injuries sustained on September 20, 2008, as a result of having been shot by Bennett Smith, the father of her child, Unique Smith (Unique). The shooting took place in the apartment where Simmons and Unique resided, located at 305 Decatur Street in Brooklyn, New York (the Premises). At the time of the incident, Kingston Heights was the owner of the premises, and Shinda was the managing agent.
As alleged, Smith resided elsewhere in Brooklyn. Earlier on the same evening that the shooting took place, and following a dispute which arose between plaintiff and Smith concerning babysitting arrangements for Unique, plaintiff went to Smith's residence to take Unique back home and, at that time, removed and took possession of approximately $2500 and a quantity of drugs that belonged to Smith. She then called Smith and told him what she had done, testifying, at her deposition, that she did so in order to taunt him.
Within an hour after the foregoing conversation, Smith appeared at plaintiff's apartment, where she, along with two male guests, was present. Smith confronted the plaintiff and shot her.
At her deposition conducted on July 11, 2012, plaintiff testified that when Smith entered the back bedroom, “[h]e didn't say nothing. He came in aggressive. He tried to put hands on me, and [Cal and Olief] stepped in front of him, and that's when he pulled out the gun.”
Following his arrest, Smith was charged on a multi-count indictment alleging, among other crimes, Attempted Murder. On November 10, 2009, during the course of his trial before Justice Sheryl Parker where plaintiff testified but altered her testimony, Smith was offered a plea bargain, and entered a plea of guilty to the crime of Attempted Assault in the First Degree in exchange for a promised sentence of six years with five years post-release supervision.
The Instant Lawsuit
Plaintiff commenced the instant lawsuit as against Kingston Heights and Shinda, but not naming Smith, by filing a verified summons and complaint on January 7, 2009 alleging that at the time of the incident, while the premises were undergoing renovations, defendants negligently failed to provide locks or other adequate security on the entryway door or on the door to plaintiff's apartment. Issue was duly joined by defendants' service of their verified answer dated April 21, 2009. Defendants subsequently commenced a third-party action against MDG Design & Construction, LLC (MDG), the company performing the renovations at the time of the incident, by service of a third-party summons and verified third-party complaint dated November 2, 2010, in response to which a verified answer dated April 14, 2011, was served.
The Third–Party Third–Party action was assigned Third–Party Index No.76861/10. The record before the court includes documents filed by and in support of MDG's motion, as relied upon by cross-movants.
MDG's motion for summary judgment was granted following oral argument before this court on February 14, 2013, and by order of that same date, the third-party complaint was dismissed. Decision on the cross motion was reserved.
In support of their cross motion, defendants, asserting that adequate security was provided and that under the facts of this case, no amount of security would have prevented the attack on plaintiff by her boyfriend, contend that (1) Smith's attack was an unforeseeable criminal act and severs any causal link between plaintiff's injuries and any negligence on their part; (2) there is no evidence of any prior similar criminal activity which would give rise to a duty on the part of the Kingston defendants to take minimal security measures; (3) even if such duty existed, defendants satisfied same because there was a functioning lock on plaintiff's apartment door at the time of the incident; and (4) the shooting was proximately caused by an intentional act by Smith, and was precipitated by plaintiff's own conduct. They further argue that Smith was known to visit the premises, since, despite significant inconsistencies in plaintiff's pretrial sworn testimony
, she consistently testified that between December of 2006 and the September, 2008 shooting, Smith would come to plaintiff's apartment on a weekly basis to pick up or visit Unique, and that Smith's own deposition testimony, procured pursuant to court order and taken at the Oneida County Correctional Facility on April 1, 2011, substantiates this.
Plaintiff testified at two depositions, was interviewed by Detective Angel Sanchez as part of the criminal complaint process, and testified as a witness at Smith's trial.
In addition, a transcript of the deposition testimony of Jacob Changlee (Changlee), dated March 30, 2010, is provided as an exhibit. In 2008, Changlee was employed by Kingston Heights as the superintendent for the premises, which, in that year, was undergoing extensive renovations. He testified that there was a metal swing gate outside of the courtyard which led to 305 Decatur Street which, in 2008, had a non-working lock, and that the entrance to the building itself had an outer and inner vestibule door. The outer door was equipped with a lock, but, as Changlee testified, the lock was constantly being damaged by tenants and others, and would be repaired by a private contractor. He testified that at times during the year 2008, the lock to the outer door was not working, but was unable to recall whether, in September of 2008, said lock was, in fact, working. According to Changlee's testimony, the inner door was not equipped with a lock.
As to the circumstances surrounding Smith's entry into plaintiff's building and apartment, defendants point to plaintiff's own testimony that she was in a back bedroom with an individual named Calvin Jones (Jones) and did not know how Smith gained entry. To address this point, they cite Jones' testimony from Smith's criminal trial, stating that: he was with his cousin, Olief Wilson (Wilson) and his friend Naquan Lee (Lee); they were all invited to plaintiff's apartment; and at some point shortly before Smith entered, Lee left the apartment to go to the store, and left the door to the apartment open. They further cite Jones' testimony to the effect that immediately after the shooting, both he and Wilson fled the apartment, but upon his return shortly thereafter, he was unable to enter the apartment because it was locked. Additionally, they cite Smith's own testimony that he entered the apartment just as another man was leaving, and the door was open. Finally, in support of their contention that the apartment was provided with a working and fully functional lock, they cite plaintiff's testimony, given at her first deposition, that on the date of the shooting, the door to the apartment was locked and she had to use the key to enter.
As to Shinda, defendants contend that said entity lacked the requisite control over the premises, or its finances to be held separately liable.
Plaintiff's Opposition
In opposition to defendants' cross motion, plaintiff contends that defendants have failed to make a prima facie showing of entitlement to judgment as a matter of law, arguing that they have failed to tender any evidence in admissible form demonstrating that the minimum level of security was provided, or that the assailant would have gained access, irrespective of the negligently-maintained access. She further asserts that she has tendered evidence that: (1) the building entrance was not maintained in a safe and secure manner; (2) the door to plaintiff's apartment was not maintained in a safe and secure manner; and (3) although plaintiff had made prior complaints, the defendants' negligence afforded access to the assailant.
Plaintiff rejects defendants' argument that the attack on her by Smith was an unforseeable criminal act, and asserts that defendants' lack of a proper response to notifications of maintenance issues concerning the locks creates an issue of fact that defeats defendants' cross motion. Alleging a history of a long-term abusive relationship involving Smith, plaintiff avers that in 2007, she went to Safe Horizon, a consulting center for abused women, which purportedly wrote a letter to Shinda requesting that she be transferred from the apartment. In addition, plaintiff, in her affidavit, states that she spoke with Wendy Hewlett of Shinda, and that although she was told that she would moved to a different apartment, the move was never effectuated. Further contending that the front entrance lock had a history of having broken and non-functioning locks, plaintiff also provides the deposition testimony of Collette Wright, a tenants' advocate, who testified regarding security breaches and criminal activity at the premises, and complaints to Shinda that, according to her testimony, went unheeded.She contends that defendants, in seeking summary judgment, have disregarded controlling authority and base their arguments on an improper legal standard.
Defendants' Reply
In reply, Shinda, as an agent for a disclosed principal, reiterates its contention that it lacks sufficient control over the premises so as to warrant any potential finding of liability, and, asserting that plaintiff has not submitted any evidence in opposition to its motion, seeks dismissal of the complaint as against it. Defendants go on to assail plaintiff's opposition as based upon fabricated testimony, the assertion of facts that are untrue or unsupported by the record, and based upon the application of a non-existent legal standard of care. In this regard, defendants argue that plaintiff ignores her own testimony that her apartment door had at least one working lock, which, they contend, satisfies the legal requirement of providing minimal security.
They further reject, as raising issues outside of the scope of their duty, any contention that they should be held responsible based upon the nature of her relationship with Smith, and, specifically as to Shinda, argue that it had no legal obligation to find her another apartment.
The testimony cited by defendants, found in a transcript of plaintiff's examination before trial conducted on July 11, 2012, is as follows:
Q: Was your door unlocked when you got there?
A: No.
Q: Was it locked?
A: Yes, I had to use the key to get in.
Finally, they argue that the shooting could have been avoided had plaintiff's own conduct not initiated the course of events which followed.
Among other things, defendants suggest that plaintiff could have moved in with her mother as she did after the shooting, gone to the police, or obtained an Order of Protection, none of which was, in fact, done.
DISCUSSION
The burden on a motion for summary judgment rests initially upon the moving party to come forward with sufficient proof in admissible form to enable a court to determine that it is entitled to judgment as a matter of law. If this burden cannot be met, the court must deny the relief sought (CPLR 3212; Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ). However, once a moving party has made a prima facie showing of its entitlement to summary judgment, “the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Garnham & Han Real Estate Brokers v. Oppenheimer, 148 A.D.2d 493 [1989];see also Zuckerman, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Mere conclusory statements, expressions of hope, or unsubstantiated allegations are insufficient to defeat the motion (Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966 [1988] ).
Defendants have met their initial burden.
A landlord has a common-law duty to take minimal precautions to protect tenants and members of the public from the foreseeable criminal acts of third parties ( see Burgos v. Aqueduct Realty, 92 N.Y.2d 544, 684 N.Y.S.2d 139, 706 N.E.2d 1163;Jacqueline S. v. City of New York, 81 N.Y.2d 288, 598 N.Y.S.2d 160, 614 N.E.2d 723;rearg. denied82 N.Y.2d 749, 602 N.Y.S.2d 807, 622 N.E.2d 308). While this legal obligation does not require a landlord to become an insurer of a tenant's safety, it imposes a minimum level of care on landlords who know or have reason to know that there is a likelihood that third parties may endanger the safety of those lawfully on the premises (Wayburn v. Madison Land Limited Partnership, 282 A.D.2d 301, 303, 724 N.Y.S.2d 34 [citations omitted] ).
However, “there is a need to balance a tenant's ability to recover for an injury caused by the landlord's negligence against a landlord's ability to avoid liability when its conduct did not cause any injury” (Burgos, 92 N.Y.2d at 551, 684 N.Y.S.2d 139, 706 N.E.2d 1163). Thus, it is well settled that a landlord is generally not liable for willful criminal acts committed on its premises by a third party, and that such extraordinary acts are generally deemed unforseeable as a matter of law ( see Nossoughi v. Ramapo Central School Dist., 287 A.D.2d 444, 445 [2001] [where plaintiff spontaneously assaulted by former student who trespassed on defendant's property, no breach of duty or proximate cause found, upon a finding that the manner in which the injury occurred could have happened even if there had been supervision at the time]; see also Bretstein v. East Midwood Jewish Center, Inc., 265 A.D.2d 442 [1999] ). Thus, where a clearly-articulated motivation for an assault is shown, the “truly extraordinary and unforeseeable” actions of the assailant “serve to break the causal connection' between any negligence on the part of the defendants and the plaintiff's injuries” (Tarter v. Schildkraut, 151 A.D.2d 414 [1989], citing Dediarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315 [1980] ).
By way of example, in Tarter, the plaintiff was a tenant who was shot in the vestibule of her apartment building by her “jilted” ex-lover, who had followed her to her residence and shot her at point-blank range. The outer door was furnished with a lock that did not function; the inner door was furnished with a functioning lock which, while functional, was in the process of being opened by plaintiff when she was shot. At trial, which resulted in a jury verdict in favor of plaintiff, evidence of tenant complaints regarding the condition of both locks, and testimony concerning vandalism and burglary in the building, was introduced. On appeal, the Appellate Division reversed and dismissed the compliant, determining that the landlord could not be held liable in negligence, because the shooting was unforeseeable as a matter of law:
“[T]he conclusion is inescapable that plaintiff's ex-lover was intent on harming plaintiff....Given the motivation for the assault, his acts were truly extraordinary and unforeseeable and served to “break the causal connection” between any negligence on the part of the defendants and plaintiff's injuries....We find it equally likely that had the outer door been locked, plaintiff would have been assaulted outside the building.”
Tarter, 151 AD3d at 416.
A similar result arose out of the underlying facts in Flynn v. Esplanade Gardens (76 A.D.3d 490 [2010] ). In Flynn, the plaintiff was a resident in defendant's apartment building, which was staffed by a security guard stationed in the lobby who was employed by the named co-defendant, an independent security company. On the morning of March 31, 2005, the plaintiff heard a knock on the door of his apartment. He looked through the peephole and saw his former girlfriend, Maria Smith, who identified herself. Only a few days before, plaintiff had broken off his year-long relationship with Smith because his fiancé was being released from prison. Smith, a person well known to the security staff as a result of having been a frequent visitor to plaintiff's apartment, had not been announced to plaintiff through the intercom system when she entered the building. When plaintiff opened the door, Smith was followed into the apartment by a man plaintiff had not seen through the peephole. The man turned out to be Patrick Mulligan, another boyfriend of Smith's. After an exchange of harsh words, Mulligan allegedly attacked plaintiff, seriously injuring him, and he commenced a lawsuit naming, as defendants, Esplanade, the company that managed the premises, and the security company. As is relevant here, Esplanade, joined by the management company, moved for summary judgment dismissing the complaint, but the motion court denied said motion. On appeal, the order was reversed, and the complaint ordered dismissed.
In so doing, the Appellate Division observed that record contained evidence indicating that while the security guard permitted Smith and Mulligan to enter the building without announcing them to plaintiff over the intercom, this action was consistent with the practice of the building's security staff over the preceding year, during which Smith, who lived across the street, had been a frequent visitor to plaintiff's apartment while she was his girlfriend; that when Smith visited the building, she was always allowed to proceed to plaintiff's apartment without being announced, without objection by plaintiff; and there was no evidence that, upon the termination of his relationship with Smith, plaintiff told the security staff to stop allowing her into the building. Citing Burgos (91 N.Y.2d at 550, 673 N.Y.S.2d 44, 695 N.E.2d 1125), the court found that the attack on plaintiff was not proximately caused by any breach of duty by Esplanade, since there was no showing of anything which should have put the guard on duty on notice that Smith and the man accompanying her were entering the building with the intention of doing plaintiff harm, and that the intentional attack on plaintiff was in no way a predictable result of allowing Smith and her companion into the building (Flynn, 76 A.D.3d at 491, 907 N.Y.S.2d 189).
The Flynn court characterized the incident as “a targeted attack” involving the settling of a score over an abortive romance.
Applying the foregoing to the facts herein, it is clear that, contrary to plaintiff's contention, moving defendants have made a clear showing of entitlement to judgment as a matter of law. As amply revealed by the record, Smith's criminal attack on plaintiff was not a random event. Rather, it was a heated response precipitated by plaintiff's own intentional and larcenous act and stoked by her inciting phone call; and was carried out with specific motivation that, as an “unforeseeable, intervening force,” severs “the causal connection between the alleged negligence of [defendants] and the complained-of injury” (Harris v. New York City Housing Authority, 211 A.D.2d 616 [1995];see also Camacho v. Edelman, 176 A.D.2d 453 [1991] [summary judgment dismissing complaint against landlord affirmed where criminal act of tenant's former lover of stabbing tenant's guest, after gaining access to building through a purportedly malfunctioning building entrance door and then kicking in double-locked and reinforced apartment door, found to have been unforeseeable] ). The burden thus shifts to plaintiff to raise a material issue of fact. Plaintiff has failed to do so.
In the first place, plaintiff has failed to provide a shred of controlling authority to support her contention that defendants were on notice of, and were under a duty to address, the fact that she was allegedly involved in an abusive relationship with Smith.
Moreover, plaintiff's contention that the holding in Burgos compels denial of defendants' motion is unconvincing. Indeed, in this regard, the Burgos Court, in discussing the balancing of interests in cases involving allegations of negligent security, stated: “[t]here is no need, however, to create a special rule for premises security cases, since the burden regularly placed on plaintiffs to establish proximate cause in negligence cases strikes the desired balance. The rule expressed ... fairly balances the competing interests by not automatically foreclosing the plaintiff from recovery in the many cases where the assailant cannot be identified, while still requiring a plaintiff to present evidence from which intruder status may reasonably be inferred. Thus, 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, 92 N.Y.2d at 546, 684 N.Y.S.2d 139, 706 N.E.2d 1163).
In order to withstand a motion for summary judgment, “the plaintiff need not prove proximate cause by a preponderance of the evidence but, assuming that the defendant has met its prima facie burden, need only raise a triable issue of fact as to proximate cause” (Muong v. 550 Ocean Ave., LLC, 78 A.D.3d 797, 798 [2010] ). Plaintiff has failed to raise an issue of fact as to causation or foreseeablilty, and her reliance on the holding in Calderin v. Lyra Associates, LLC (281 A.D.2d 248 [2001] ) is unavailing. In that case, where the Appellate Division reversed the motion court's order granting summary judgment in favor of the defendant owner, the plaintiff was assaulted by a tenant or former tenant whose identity was known to her as the father of her neighbor's daughter, who, after allegedly gaining entrance to the building as a result of negligently maintained locks, followed plaintiff from the lobby to her third floor apartment and attacked her. Calderin is clearly distinguishable by the fact that the plaintiff was the victim of a random act of violence committed by an individual who, while known to her, was one with whom she had never had prior personal dealings of any sort, and the record was devoid of any facts that would compel a finding that the unforeseeable nature of the attack severed the causal connection (Calderin, 281 A.D.2d at 248, 721 N.Y.S.2d 658;see also Venetal v. City of New York, 21 A.D.3d 1087 [2005] ).
As noted above, plaintiff's own deposition testimony, as corroborated by that of Jones, demonstrates that her apartment had a lock, that said lock was functional on the date of the incident, and once again fails to raise an issue of fact as to defendants' contention that her injuries did not proximately result from ambient crime or general unsafe conditions in the building ( see Flynn, 76 A.D.3d at 493, 907 N.Y.S.2d 189). While the exact means by which Smith gained access to the building remains unclear, plaintiff has failed to refute the pivotal fact that Smith acted with a clear purpose in confronting her and in all likelihood would have gained entry into the building irrespective of the security that was in place ( see Nossoughi, 287 A.D.2d at 445, 731 N.Y.S.2d 78), as shown by Smith's testimony that on previous visits to plaintiff's apartment to see their son, he would gain plaintiff's permission to access to plaintiff's apartment by using the buzzer/intercom on the ground floor, but did not do so immediately prior to the incident. Smith's testimony as to how he entered plaintiff's apartment, as corroborated by that of Jones, further refutes plaintiff's contentions, as it establishes that Smith gained access to the apartment through the open and unlocked door to the apartment. Thus, under the totality of circumstances, plaintiff has failed to raise an issue of fact ( see Davis v. Rochdale Village, Inc., 83 A.D.3d 991 [2011];Jackson v. Lefferts Heights Housing Development Fund, Co., Inc., 38 A.D.3d 610 [2007];see also Burgos, 92 N.Y.2d at 551, 684 N.Y.S.2d 139, 706 N.E.2d 1163).
In view of the foregoing, the court grants defendants' motion in all respects and awards summary judgment dismissing the complaint.
The foregoing constitutes the decision, order and judgment of the court.