Corporan v. Barrier Free Living Inc.

Appellate Division of the Supreme Court of New York

Corporan v. Barrier Free Living Inc.

133 A.D.3d 497, 19 N.Y.S.3d 160

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 17, 2015

Docket16166 300799/11

StatusPublished

Cited by1 cases

This text of 133 A.D.3d 497 (Corporan v. Barrier Free Living Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Corporan v. Barrier Free Living Inc., 133 A.D.3d 497, 19 N.Y.S.3d 160 (N.Y. Ct. App. 2015).

Pincite

Opinion

*498 Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered January 13, 2015, which denied plaintiff’s motion for summary judgment on the issue of liability and denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Triable issues of fact exist as to whether defendants, the owner and operator of a transitional facility for disabled homeless people, breached their common-law duty to provide reasonable security measures to protect plaintiff’s decedent from foreseeable harm (see Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 519 [1980]). The fatal attack on decedent by a fellow resident was immediately preceded by two prior physical attacks, by the same resident, and police officers responding to the earlier attacks had told defendants’ staff members to keep the two residents apart.

In light of the conflicting testimony as to the perpetrator’s demeanor prior to the final attack and whether defendants were on notice of his alleged threat to continue the attack on decedent, it is for a jury to determine whether a further attack was foreseeable. The fact that defendants may not have been able to “anticipate the precise manner of the [attack] or the exact extent of injuries . . . does not preclude liability as a matter of law where the general risk and character of injuries are foreseeable” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 316-317 [1980]). Furthermore, while unforeseeable and intentional criminal acts by third parties are supervening acts which sever the causal connection with any alleged negligence (see Ullrich v Bronx House Community Ctr., 99 AD3d 472 [1st Dept 2012]), here, “the alleged intervening criminal act is itself the foreseeable harm that shapes the duty [of care sought to be] imposed” (Browne v International Bhd. of Teamsters Union 851, 187 AD2d 296, 296 [1st Dept 1992] [internal quotation marks omitted]). Concur — Gonzalez, P.J., Sweeny, ManzanetDaniels and Kapnick, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

*498 Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered January 13, 2015, which denied plaintiff’s motion for summary judgment on the issue of liability and denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Triable issues of fact exist as to whether defendants, the owner and operator of a transitional facility for disabled homeless people, breached their common-law duty to provide reasonable security measures to protect plaintiff’s decedent from foreseeable harm (see Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 519 [1980]). The fatal attack on decedent by a fellow resident was immediately preceded by two prior physical attacks, by the same resident, and police officers responding to the earlier attacks had told defendants’ staff members to keep the two residents apart.

In light of the conflicting testimony as to the perpetrator’s demeanor prior to the final attack and whether defendants were on notice of his alleged threat to continue the attack on decedent, it is for a jury to determine whether a further attack was foreseeable. The fact that defendants may not have been able to “anticipate the precise manner of the [attack] or the exact extent of injuries . . . does not preclude liability as a matter of law where the general risk and character of injuries are foreseeable” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 316-317 [1980]). Furthermore, while unforeseeable and intentional criminal acts by third parties are supervening acts which sever the causal connection with any alleged negligence (see Ullrich v Bronx House Community Ctr., 99 AD3d 472 [1st Dept 2012]), here, “the alleged intervening criminal act is itself the foreseeable harm that shapes the duty [of care sought to be] imposed” (Browne v International Bhd. of Teamsters Union 851, 187 AD2d 296, 296 [1st Dept 1992] [internal quotation marks omitted]). Concur — Gonzalez, P.J., Sweeny, ManzanetDaniels and Kapnick, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

133 A.D.3d 497, 19 N.Y.S.3d 160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/corporan-v-barrier-free-living-inc-nyappdiv-2015.

Opinion

Related

Cite This Page — Counsel Stack