Opinion
630 CA 19-01066
11-13-2020
Antonio Jose VIRELLA, Plaintiff-Appellant, v. 245 NORTH STREET HOUSING DEVELOPMENT FUND CORP., 245 North Street, LLC, E. Square Capital, Inc., Defendants-Respondents, et al., Defendant.
ANDREWS, BERNSTEIN, MARANTO & NICOTRA, PLLC, BUFFALO (BETHANY A. RUBIN OF COUNSEL), FOR PLAINTIFF-APPELLANT. RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (KEVIN J. KRUPPA OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
ANDREWS, BERNSTEIN, MARANTO & NICOTRA, PLLC, BUFFALO (BETHANY A. RUBIN OF COUNSEL), FOR PLAINTIFF-APPELLANT.
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (KEVIN J. KRUPPA OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: SMITH, J.P., CARNI, NEMOYER, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff, a tenant in a building owned by defendants 245 North Street Housing Development Fund Corp. and 245 North Street, LLC, and managed by defendant E. Square Capital, Inc. (collectively, defendants), commenced this action seeking damages for personal injuries that he allegedly sustained when he was assaulted by another tenant. The complaint, insofar as relevant here, alleged that defendants were negligent in failing to "keep the premises free from known dangerous conditions, namely the intoxicated and violent" cotenant. Plaintiff appeals from an order granting the motion of defendants for summary judgment dismissing the complaint against them. We affirm.
With respect to the cause of action against defendants, it is well settled that "[l]andlords have a ‘common-law duty to take minimal precautions to protect tenants from foreseeable harm,’ including a third party's foreseeable criminal conduct" ( Burgos v. Aqueduct Realty Corp. , 92 N.Y.2d 544, 548, 684 N.Y.S.2d 139, 706 N.E.2d 1163 [1998], quoting Jacqueline S. v. City of New York , 81 N.Y.2d 288, 293-294, 598 N.Y.S.2d 160, 614 N.E.2d 723 [1993], rearg denied 82 N.Y.2d 749, 602 N.Y.S.2d 807, 622 N.E.2d 308 [1993] ). Nevertheless, "the necessary causal link between a landlord's culpable failure to provide adequate security and a tenant's injuries resulting from a criminal attack in the building can be established only if the assailant gained access to the premises through a negligently maintained entrance. Since even a fully secured entrance would not keep out another tenant ..., plaintiff can recover only if the assailant was an intruder. Without such a requirement, landlords would be exposed to liability for virtually all criminal activity in their buildings" ( Burgos , 92 N.Y.2d at 550-551, 684 N.Y.S.2d 139, 706 N.E.2d 1163 ; see Williams v. Utica Coll. of Syracuse Univ. , 453 F.3d 112, 120-121 [2d Cir. 2006] ; Aminova v. New York City Hous. Auth. , 168 A.D.3d 651, 652, 91 N.Y.S.3d 264 [2d Dept. 2019] ). Consequently, a "landlord has no duty to prevent one tenant from attacking another tenant unless it has the authority, ability, and opportunity to control the actions of the assailant" ( Britt v. New York City Hous. Auth. , 3 A.D.3d 514, 514, 770 N.Y.S.2d 744 [2d Dept. 2004], lv denied 2 N.Y.3d 705, 780 N.Y.S.2d 311, 812 N.E.2d 1261 [2004] ; see Mills v. Gardner , 106 A.D.3d 885, 886, 965 N.Y.S.2d 580 [2d Dept. 2013] ; see also Cortez v. Delmar Realty Co., Inc. , 57 A.D.3d 313, 313, 869 N.Y.S.2d 437 [1st Dept. 2008], lv dismissed in part and denied in part 12 N.Y.3d 774, 879 N.Y.S.2d 32, 906 N.E.2d 1064 [2009] ), and "[a] reasonable opportunity or effective means to control a third person does not arise from the mere power to evict" ( Siino v. Reices , 216 A.D.2d 552, 553, 628 N.Y.S.2d 757 [2d Dept. 1995] ; see Britt , 3 A.D.3d at 514, 770 N.Y.S.2d 744 ). Thus, in general, landowners "ha[ve] no duty to control [their tenants'] conduct for the protection of other tenants" ( Torre v. Burke Constr. , 238 A.D.2d 941, 942, 661 N.Y.S.2d 145 [4th Dept. 1997] ; see Sobers v. Roth Bros. Partnership Co. , 284 A.D.2d 324, 324, 725 N.Y.S.2d 561 [2d Dept. 2001] ). To the extent that our decision in Jackson-Ott v. Mack , 30 A.D.3d 1025, 1025-1026, 817 N.Y.S.2d 473 (4th Dept. 2006) may be read to support the position that a landlord has a duty to control the behavior of its tenants outside those "special circumstances in which there is sufficient authority and ability to control the conduct of" those tenants ( Purdy v. Public Adm'r of County of Westchester , 72 N.Y.2d 1, 8, 530 N.Y.S.2d 513, 526 N.E.2d 4 [1988], rearg denied 72 N.Y.2d 953, 533 N.Y.S.2d 60, 529 N.E.2d 428 [1988] ), it should no longer be followed.
Here, Supreme Court properly granted the motion inasmuch as defendants established that they had no ability or opportunity to control the cotenant who allegedly attacked plaintiff, and plaintiff failed to raise a triable issue of fact in opposition (see generally Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). Additionally, a landlord is not liable for the conduct of a tenant unless "the harm complained of was foreseeable" ( Firpi v. New York City Housing Auth. , 175 A.D.2d 858, 859, 573 N.Y.S.2d 704 [2d Dept. 1991], lv denied 78 N.Y.2d 864, 578 N.Y.S.2d 879, 586 N.E.2d 62 [1991] ; see Britt , 3 A.D.3d at 515, 770 N.Y.S.2d 744 ), and we conclude that "defendants established on their motion for summary judgment that the conduct of the tenant-assailant in their building was not reasonably foreseeable" ( Perry v. Northwestern Realty Co. , 236 A.D.2d 378, 378, 654 N.Y.S.2d 572 [2d Dept. 1997] ; see Britt , 3 A.D.3d at 515, 770 N.Y.S.2d 744 ). Contrary to plaintiff's contention, the "[e]vidence tending to show [defendants'] awareness of possible harassment of [another tenant] by the [co]tenant did not tend to show [their] awareness of the [co]tenant's alleged violent propensities and there was otherwise no showing that the assault was foreseeable" ( Bonano v. XYZ Corp. , 261 A.D.2d 280, 280-281, 690 N.Y.S.2d 270 [1st Dept. 1999] ; see also Cortez , 57 A.D.3d at 313-314, 869 N.Y.S.2d 437 ; see generally Belinkie v. Zucker , 255 A.D.2d 219, 219-220, 680 N.Y.S.2d 15 [1st Dept. 1998], lv denied 93 N.Y.2d 802, 688 N.Y.S.2d 493, 710 N.E.2d 1092 [1999] ).
With respect to the allegations in the complaint that the cotenant was intoxicated, the Court of Appeals has stated that, although "a landowner may have responsibility for injuries caused by an intoxicated guest[,] ... that liability may be imposed only for injuries that occurred[, insofar as relevant here], where [the] defendant had the opportunity to supervise the intoxicated guest ... That duty emanated not from the provision of alcohol but from the obligation of a landowner to keep its premises free of known dangerous conditions, which may include intoxicated guests" ( D'Amico v. Christie , 71 N.Y.2d 76, 85, 524 N.Y.S.2d 1, 518 N.E.2d 896 [1987] ; see Parslow v. Leake , 117 A.D.3d 55, 65, 984 N.Y.S.2d 493 [4th Dept 2014] ). Here, the court properly granted the motion of defendants inasmuch as they "met [their] prima facie burden by demonstrating that [they] did not have the opportunity or the ability to control the conduct of [the intoxicated cotenant, and] plaintiff[ ] failed to raise a triable issue of fact" ( Daly v. Finley , 101 A.D.3d 931, 932, 957 N.Y.S.2d 224 [2d Dept. 2012] ; see McGlynn v. St. Andrew Apostle Church , 304 A.D.2d 372, 372-373, 761 N.Y.S.2d 151 [1st Dept. 2003], lv denied 100 N.Y.2d 508, 764 N.Y.S.2d 385, 796 N.E.2d 477 [2003] ; see generally Cavanaugh v. Knights of Columbus Council 4360 , 142 A.D.2d 202, 204-205, 535 N.Y.S.2d 275 [3d Dept. 1988], lv denied 74 N.Y.2d 604, 543 N.Y.S.2d 396, 541 N.E.2d 425 [1989] ).