Flynn v. Esplanade Gardens, Inc.

76 A.D.2d 490, 907 N.Y.S.2d 189

This text of 76 A.D.2d 490 (Flynn v. Esplanade Gardens, 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
Flynn v. Esplanade Gardens, Inc., 76 A.D.2d 490, 907 N.Y.S.2d 189 (N.Y. Ct. App. 2010).

Opinion

[491]*491Order, Supreme Court, New York County (Joan A. Madden, J.), entered July 28, 2009, which, insofar as appealed from, denied the motion of defendants Esplanade Gardens, Inc. and Prestige Management, Inc. (collectively, Esplanade) for summary judgment dismissing the complaint as against them, and denied so much of the cross motion of defendant Securitas Security Services USA, Inc. for summary judgment dismissing Esplanade’s cross claim against it for contractual indemnification, unanimously reversed, on the law, without costs, and the motion and cross motion granted.

On the morning of March 31, 2005, plaintiff heard a knock on the door of his apartment in Esplanade’s building. 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 fiancée was being released from prison. Smith 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.

The record contains evidence indicating that a security guard stationed in the building’s lobby permitted Smith and Mulligan to enter the building but failed to announce them to plaintiff over the intercom. This 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 plaintiffs apartment while she was his girlfriend. When Smith visited the building, she was always allowed to proceed to plaintiffs apartment without being announced, without objection by plaintiff. Further, there is no evidence that, upon the termination of his relationship with Smith, plaintiff told the security staff to stop allowing her into the building.

In this action, plaintiff sues Esplanade, the owner of the building, for the injuries Mulligan inflicted on him, on the theory that Esplanade’s negligence enabled Mulligan to enter the building. Specifically, plaintiff claims that the security guard [492]*492stationed in the lobby by Securitas, Esplanade’s security contractor, should have announced Smith and Mulligan to plaintiff through the intercom before allowing them to proceed to his apartment. To the extent that Smith and Mulligan may have entered the building through one of the unlocked and unguarded side doors, plaintiff contends that Esplanade was negligent in failing to keep these doors locked. ,

On appeal, Esplanade argues that there was no history of criminal activity in the building that would have rendered an attack of this kind foreseeable. Esplanade failed, however, to raise this issue before the motion court. Accordingly, although there is no evidence, of previous crimes in the record, we are required to assume, for. purposes of this appeal, that, in light of past experience, residents of plaintiffs building faced a foreseeable risk of harm from criminal acts by intruders, from which Esplanade, as landlord, was required to take minimal precautions to protect them (see Burgos v Aqueduct Realty Corp. 92 NY2d 544, 548 [1998]). Nonetheless, it is plain that, on this record, the attack on plaintiff was not proximately caused by any breach of this duty.

As previously indicated, Smith, a person well known to the building’s security staff, was a frequent visitor to plaintiffs apartment and, for the previous year, plaintiff had not objected to the security staffs consistent practice of allowing her into the building unannounced. There is no evidence whatsoever that anything should have put the guard on duty on notice that Smith and the man accompanying her were entering the building on the morning in question with the intention of doing plaintiff harm. Because the specifically targeted attack on plaintiff was in no way a predictable result of allowing Smith and her companion into the building, the harm to plaintiff was not proximately caused by Esplanade’s negligence, if any (see Burgos, 92 NY2d at 550; Maria T. v New York Holding Co. Assoc., 52 AD3d 356, 359-360 [2008], lv denied 11 NY3d 708 [2008]). Stated otherwise, the specifically targeted criminal assault perpetrated upon plaintiff by the companion of a visitor he knew—a visitor to whom he had granted free entrée to the building for the past year—constituted an unforeseeable, intervening force that severed any causal nexus between Esplanade’s alleged negligence and plaintiffs injuries, since it is most unlikely that reasonable security measures would have prevented an attack of this kind (see Cynthia B. v 3156 Hull Ave. Equities, Inc., 38 AD3d 360 [2007]; Buckeridge v Broadie, 5 AD3d 298, 300 [2004]; Cerda v 2962 Decatur Ave. Owners Corp., 306 AD2d 169 [2003]; Rivera v New York City Hous. Auth., 239 AD2d 114 [1997]).

[493]*493Seeking to avoid the effect of the above-cited case law rejecting claims against landlords based on specifically targeted assaults, plaintiff asserts that the record here raises an issue of fact as to whether Mulligan went to plaintiff’s apartment intending to attack him. This suggestion finds no support in the record, in which all of the evidence indicates that the physical conflict between the two men began immediately upon Mulligan’s entry into the apartment.

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Related

Mason v. U.E.S.S. Leasing Corp.
756 N.E.2d 58 (New York Court of Appeals, 2001)
Burgos v. Aqueduct Realty Corp.
706 N.E.2d 1163 (New York Court of Appeals, 1998)
Buckeridge v. Broadie
5 A.D.3d 298 (Appellate Division of the Supreme Court of New York, 2004)
Cynthia B. v. 3156 Hull Ave. Equities, Inc.
38 A.D.3d 360 (Appellate Division of the Supreme Court of New York, 2007)
Maria T. v. New York Holding Co. Associates
52 A.D.3d 356 (Appellate Division of the Supreme Court of New York, 2008)
Rivera v. New York City Housing Authority
239 A.D.2d 114 (Appellate Division of the Supreme Court of New York, 1997)
Madera v. New York City Housing Authority
264 A.D.2d 579 (Appellate Division of the Supreme Court of New York, 1999)
Mason v. U.E.S.S. Leasing Corp.
274 A.D.2d 79 (Appellate Division of the Supreme Court of New York, 2000)
Cerda v. 2962 Decatur Avenue Owners Corp.
306 A.D.2d 169 (Appellate Division of the Supreme Court of New York, 2003)

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Bluebook (online)
76 A.D.2d 490, 907 N.Y.S.2d 189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flynn-v-esplanade-gardens-inc-nyappdiv-2010.