Lerner v. Friends of Mayanot Institute, Inc.

Appellate Division of the Supreme Court of New York

Lerner v. Friends of Mayanot Institute, Inc.

2017 NY Slip Op 3894, 150 A.D.3d 504, 55 N.Y.S.3d 17

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

DecidedMay 16, 2017

Docket4012 159038/12

StatusPublished

Cited by1 cases

This text of 2017 NY Slip Op 3894 (Lerner v. Friends of Mayanot Institute, 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.

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Lerner v. Friends of Mayanot Institute, Inc., 2017 NY Slip Op 3894, 150 A.D.3d 504, 55 N.Y.S.3d 17 (N.Y. Ct. App. 2017).

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Opinion

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered October 28, 2016, which, insofar as appealed from as limited by the briefs, denied defendant Tannenbaum Chabad House’s (Tannenbaum) motion to dismiss for lack of personal jurisdiction and denied Tannenbaum’s motion and defendants Friends of Mayanot Institute, Inc., and Mayanot Institute of Jewish Studies’ (together Mayanot) cross motion for summary judgment insofar as they sought dismissal of the negligence and breach of contract claims, and all cross claims, unanimously modified, on the law, to grant defendants’ summary *505 judgment motions, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing all claims in this action.

The record evidence supports the exercise of jurisdiction over Tannenbaum pursuant to CPLR 302 (a) (1), under the theory that Tannenbaum transacted business in New York, through its employee, who regularly met with tour participants at JFK Airport for an orientation (see Front, Inc. v Khalil, 103 AD3d 481, 482 [1st Dept 2013], affd 24 NY3d 713 [2015]; New Media Holding Co. LLC v Kagalovsky, 97 AD3d 463, 464 [1st Dept 2012]).

Nevertheless, defendants are entitled to summary judgment. Even assuming that defendants had a duty to monitor the adult plaintiff and prevent her from engaging in excessive drinking, there was no reasonable action that they could have taken to prevent her from being assaulted by the young men whom she met and socialized with in a hotel bar and who undisputedly drugged her and subsequently assaulted her. The record evidence, including the testimony of plaintiff’s roommate, shows that plaintiff voluntarily left the bar with one of the men, with no sign that she was incapacitated. Defendants had no duty to protect plaintiff against an unforeseeable criminal act, as they had no notice of prior similar acts (see Brandy B. v Eden Cent. School Dist., 15 NY3d 297, 302 [2010]). In addition, under the circumstances presented, there is “no non-speculative basis for finding that any greater level of supervision than was provided would have prevented” the unforeseeable criminal assault, warranting dismissal of plaintiff’s negligence claim (Emmanuel B. v City of New York, 131 AD3d 831, 833 [1st Dept 2015]).

Dismissal of the breach of contract claim is also warranted, as plaintiff has failed to point to any contractual provision in which any defendant undertook to protect her “at all times.”

Concur—Sweeny, J.P., Renwick, Andrias, Feinman and Gesmer, JJ.

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Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered October 28, 2016, which, insofar as appealed from as limited by the briefs, denied defendant Tannenbaum Chabad House’s (Tannenbaum) motion to dismiss for lack of personal jurisdiction and denied Tannenbaum’s motion and defendants Friends of Mayanot Institute, Inc., and Mayanot Institute of Jewish Studies’ (together Mayanot) cross motion for summary judgment insofar as they sought dismissal of the negligence and breach of contract claims, and all cross claims, unanimously modified, on the law, to grant defendants’ summary *505 judgment motions, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing all claims in this action.

The record evidence supports the exercise of jurisdiction over Tannenbaum pursuant to CPLR 302 (a) (1), under the theory that Tannenbaum transacted business in New York, through its employee, who regularly met with tour participants at JFK Airport for an orientation (see Front, Inc. v Khalil, 103 AD3d 481, 482 [1st Dept 2013], affd 24 NY3d 713 [2015]; New Media Holding Co. LLC v Kagalovsky, 97 AD3d 463, 464 [1st Dept 2012]).

Nevertheless, defendants are entitled to summary judgment. Even assuming that defendants had a duty to monitor the adult plaintiff and prevent her from engaging in excessive drinking, there was no reasonable action that they could have taken to prevent her from being assaulted by the young men whom she met and socialized with in a hotel bar and who undisputedly drugged her and subsequently assaulted her. The record evidence, including the testimony of plaintiff’s roommate, shows that plaintiff voluntarily left the bar with one of the men, with no sign that she was incapacitated. Defendants had no duty to protect plaintiff against an unforeseeable criminal act, as they had no notice of prior similar acts (see Brandy B. v Eden Cent. School Dist., 15 NY3d 297, 302 [2010]). In addition, under the circumstances presented, there is “no non-speculative basis for finding that any greater level of supervision than was provided would have prevented” the unforeseeable criminal assault, warranting dismissal of plaintiff’s negligence claim (Emmanuel B. v City of New York, 131 AD3d 831, 833 [1st Dept 2015]).

Dismissal of the breach of contract claim is also warranted, as plaintiff has failed to point to any contractual provision in which any defendant undertook to protect her “at all times.”

Concur—Sweeny, J.P., Renwick, Andrias, Feinman and Gesmer, JJ.

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Bluebook (online)

2017 NY Slip Op 3894, 150 A.D.3d 504, 55 N.Y.S.3d 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lerner-v-friends-of-mayanot-institute-inc-nyappdiv-2017.

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