One of our negligent security cases, Benson v. Monte Carlo, LLC, (Nassau County, Supreme Court Index # 016489/2007) made the front page of today’s New York Law Journal. We successfully opposed the defendant’s motion for summary judgment, and an article appears in the newspaper discussing the decision of Hon. Thomas Feinman, dated February 23, 2010, that denied the motion. Our client was assaulted (stabbed and sustaining a broken ankle requiring surgery) in the courtyard of the building where he resided while trying to protect his wife and son from a group of men who were trespassing and drinking in the courtyard. We were able to defeat the motion largely in part due to our investigation which revealed that police had been to the premises 188 times in the previous five years. The Decision and Order is included below.
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SUPREME COURT – STATE OF NEW YORK
COUNTY OF NASSAU
Present:
Hon. Thomas Feinman
Justice
__________________________________________ TRIAL/IAS, PART 15
KAREEM BENSON and LATANYA BENSON, NASSAU COUNTY
Plaintiffs, INDEX NO. 16489/07
- against - MOTION SUBMISSION
DATE: 1/12/10
MONTE CARLO, L.L.C.,
MOTION SEQUENCE
Defendant. NO. 1
_________________________________________
The following papers read on this motion:
Notice of Motion and Affidavits………………… X
Memorandum of Law in Support of Motion… X
Affirmation in Opposition…………………………. X
Reply Affirmation…………………………………….. X
RELIEF REQUESTED
The defendant moves for an order pursuant to CPLR §3212 granting defendant
summary judgment dismissing plaintiff¹s complaint. The defendant submits a
Memorandum of Law in support of the defendant¹s motion. The plaintiff
submits opposition. The defendant submits a reply affirmation.
BACKGROUND
The plaintiff initiated this action for personal injuries sustained as a
result of an assault that occurred on May 28, 2007 at 12:30 a.m. The
defendant, owner of the two residential buildings located at 41 and 43 High
Street, Hempstead, New York, claims that defendant is entitled to summary
judgment because, essentially, the assault was not foreseeable.
The plaintiff claims that the assault took place in the courtyard situated
between 41 and 43 High Street, Hempstead, New York. Plaintiff submits
access to the buildings at 41 and 43 High Street is solely through the
courtyard. The plaintiff, Kareem Benson, who was assaulted, and his wife,
Latanya Benson, who has a derivative action, are tenants at apartment 1A at
41 High Street, Hempstead, New York, and live there with their two sons. On
the night of the incident, the plaintiffs and their two sons, approximately
18 and 20 years old, returned to their apartment. A group of men,
approximately six or seven, were at the top step of the buildings entrance,
in the courtyard. Plaintiff¹s wife, Latanya Benson, along with her two
sons, entered the building. The plaintiffs submit that the door to the
building was not locked and was held open was a rope tied around the
radiator. Once inside the apartment, Latanya Benson telephoned the police,
while her husband, plaintiff, Kareem Benson, waited in his vehicle for her.
Kareem Benson claims that he waited for his wife to come out of the
building, and he observed that the group of men would not let her pass to
leave the building. Therefore, plaintiff, Kareem Benson, requested that the
men allow her to pass. Latanya Benson and her son, Kaywon Benson, were
allowed to pass. However, plaintiff claims one of the men pulled out a
weapon, a blade, and as Kareem Benson moved in front of his wife and son, a
man stabbed him and he fell backwards. Plaintiff claims that he sustained
an upper chest stab wound and a fractured ankle.
DISCUSSION
A property owner has an obligation to take minimal precautions to protect
members of the public for the reasonably foreseeable acts of third persons.
(Johnson v. City of New York, 7 AD3d 577; Nallan v. Helmsley-Spear, Inc., 50
NY2d 507). A showing that criminal assaults were foreseeable on the
premises does not require that prior criminal activities have occurred in
the same building of a unified public housing complex. (Jacqueline v. City
of New York, 81 NY2d 288). A determination is to be made based on location,
nature and extent of previous criminal activities, and their similarity,
proximity or other relationship to crime in question. (Id.) Where
plaintiffs produced the buildings security log which reflected numerous
instances of trespassers in the lobby, halls, stairwells and roof, as well
as multiple crimes of vandalism and robbery, within the year preceding the
assault on the plaintiff, the plaintiffs presented sufficient evidence from
which the intruder status of plaintiff¹s assailant could be inferred. (Rios
v. Jackson Associates, 259 AD2d 608).
The plaintiff has produced a copy of the police blotter log reports for 41
and 43 High Street, Hempstead, New York, from May 1, 2002 through June 1,
2007, approximately five years prior to the incident. Approximately 99
calls were placed to the police concerning 41 High Street, and 89 calls were
placed to the police concerning 43 High Street, for a total of approximately
188 calls over five years. Plaintiff, Latanya Benson, maintains that she
made several complaints to the building¹s management company about people
³trespassing, using illicit drugs, drinking, sleeping in front of the
apartment², and that management did not respond. Plaintiff¹s expert, Walter
Signorelli, a retired member of the New York Police Department, provides
that as per his review of the police blotters, the majority of calls placed
to the police were of ³disorderly conduct² and ³disturbances², incidents
which often escalate into assaults and other crimes. Mr. Signorelli states
that there is a prior assault report, as well as two robberies, and multiple
reports of disorderly conduct and disturbances.
Francisco Aleman, employed by the defendant¹s management company, testified
that people who did not reside at 41 or 43 High Street were often removed
from the premises by the police, that ³the police always come to check².
Francisco Aleman testified that people, as old as 40 years old, and kids,
were removed from the two buildings at 41 and 43 High Street. Plaintiff
refers to a copy of the police log which indicates that on December 10,
2006, a call was received by the police from a ³Francisco/Super² of 41 High
Street, although Francisco testified that he did not telephone the police.
Plaintiff also refers to the records annexed to defendant¹s moving papers
and maintains that 26 calls to the police were made from January 1, 2006
through August 31, 2007, approximately one year prior to the incident,
including a robbery and several calls, disturbances, and disorderly conduct.
Contrary to the defendant¹s contention, as stated by the Court of Appeals,
³[t]here is no requirement in Nallan [Nallan v. Helmsley-Spear, Inc., 50
NY2d 507] or Miller [Miller v. State of New York, 62 NY2d 506] that the past
experience relied on to establish foreseeability be of criminal activity at
the exact location where plaintiff was harmed or that it be of the same type
of criminal conduct to which plaintiff was subjected². (Jacqueline v. City
of New York, supra, see also Neil v. New York City Housing Authority, 48
AD3d 767).
The court¹s function on this motion for summary judgment is issue finding
rather than issue determination. (Sillman v. Twentieth Century Fox Film
Corp., 165 NYS2d 498). Since summary judgment is a drastic remedy, it
should not be granted where there is any doubt as to the existence of a
triable issue. (Rotuba Extruders v. Ceppos, 413 NYS2d 141). Thus, when
the existence of an issue of fact is even arguable or debatable, summary
judgment should be denied. (Stone v. Goodson, 200 NYS2d 627. The role of
the court is to determine if bonafide issues of fact exists, and not to
resolve issues of credibility. (Gaither v. Saga Corp., 203 AD2d 239; Black
v. Chittenden, 69 NY2d 665).
The purpose of a motion for summary judgment is to shift out evidentiary
facts and determine from them whether an issue of fact exists. (CPLR
§3212(b)). Evidence must be viewed in the light most favorable to the
nonmoving party. (Gonzalez v. Metropolitan Life Insurance Company, 269 AD2d
495). The nonmoving party¹s evidence must be accepted as true and the
nonmoving party is entitled to every favorable inference which can
reasonably be drawn from the evidence. (Wong v. Tang, 2 AD3d 840; Farrukh
v. Board of Education of the City of New York, 227 AD2d 440).
Here, the plaintiff has raised a triable issue of fact as to whether the
criminal activity that occurred to the plaintiff was the type of criminal
conduct to which the plaintiff was subjected to, as the plaintiffs¹
submissions indicate substantial criminal conduct at the location where
plaintiff was assaulted, and similar type of criminal conduct that plaintiff
was subjected to, albeit, not the ³exact² same type of criminal conduct .
CONCLUSION
The defendant¹s motion for summary judgment is denied.
E N T E R :
________________________________
J.S.C.
Dated: February 23, 2010