Alfred Cafferata, Individually and as Limited Administrator of the Estate of Michael D. Cafferata, Plaintiffv.The Estate of Barbara Kett by Jeffrey Kett Limited Administrator, and Sea Cliff Towers Owners Corp., DefendantRecitation, as required by CPLR §2219(a), of the papers considered in the review of Defendant / Third-Party Plaintiff’s Motion:Papers NumberedDefendant/Third-Party Plaintiff. Sea Cliff Towers Notice of Motion and affidavits/affirmations; annexed exhibits 1-2Plaintiffs Opposition, affidavits/affirmation; exhibits; memo of law 3-4Defendant/Third-Party Plaintiff Affidavit in Reply to Opposition. 5Defendant The Estate of Barbara Kett Affidavit in partial support of motion 6Defendant/Third-Party Plaintiff Affidavit in reply to Defendant The Estate of Barbara Kett 7DECISION/ORDERUpon review of the foregoing papers and argument having been heard on July 16, 2018:Defendant/Third-Party Plaintiff Sea Cliff Towers Owners Corp. (hereinafter Sea Cliff Towers) moves for summary judgment dismissing Plaintiff’s complaint and for indemnification from Co-defendant the Estate of Barbara Kett by Jeffrey Kett, Limited Administrator (hereinafter The Estate).I. Statement of FactsThe within action arises from the fatal stabbing of plaintiff’s decedent Michael Cafferata (hereinafter Plaintiff’s Decedent) on January 7, 2004. At that time, Defendant’s decedent Barbara Kett was the holder of a proprietary lease for Apartment 3P at Sea Cliff Towers located at 20 Cliff Street in Staten Island. When this incident occurred, Plaintiff’s decedent was visiting the subject apartment. An argument ensued between Plaintiff’s decedent and third-party defendant Michael Kett (hereinafter third-party Defendant Kett) who was Barbara Kett’s son and a resident of the subject apartment which culminated in the stabbing death of Plaintiff’s decedent by third-party defendant Kett.In support of its motion for summary judgment defendant Sea Cliff Towers submits the pleadings; the proprietary lease of Barbara Kett at 20 Cliff Street, Staten Island; the deposition of Barbara Kett taken on June 6, 20061, approximately two and one-half years after the incident; the deposition of Debra Elia taken on January 17, 2017, more than thirteen years after the incident; and the deposition of The Estate by Jeffrey Kett2, (brother of Michael Kett3) taken on February 16, 2017, more than twelve years after the incident.Sea Cliff Towers argues that third-party defendant Kett, was a heavy user and dealer of crack cocaine, was well acquainted with Plaintiff’s decedent and his companion Debra Elia, and often supplied them with drugs. In the months prior to the incident, Plaintiff’s decedent and Ms. Elia had previously visited and stayed at the apartment where Barbara Kett and her son, thirdparty defendant Kett, lived. At one point, Barbara Kett had even loaned Plaintiff’s decedent money.On the evening of January 7, 2004, Barbara Kett and third-party defendant Kett were driving home when they came across Plaintiff’s decedent and Ms. Elia who had been released from jail earlier that day. They were then invited and brought to the Kett apartment at 20 Cliff Street. Barbara Kett unlocked the outer door and then the apartment door and allowed them to enter.Sea Cliff Towers argues that there is no allegation or proof of defective entry systems or that Plaintiff’s decedent was an intruder or that the incident involved an intruder. Defendant further asserts that the property owner has no duty to protect people who are not intruders because, as in this matter, they have voluntarily entered or have been invited into an apartment.Sea Cliff Towers seeks indemnity from The Estate pursuant to the terms of the proprietary lease which obligates Barbara Kett to hold Sea Cliff Towers harmless from all liability due wholly or in part by the acts of the lessee or anyone in the apartment. Sea Cliff Towers contends4 that this intentional tort triggers Barbara Kett’s obligation to indemnify Sea Cliff.In opposition, Plaintiff’s decedent argues that Sea Cliff Towers motion must be denied because a question of fact exists as to whether the Sea Cliff Towers provided necessary protection to Plaintiff’s decedent who was a visitor in the defendant’s building. Plaintiff decedent’s allegations5 are based on the premise that Sea Cliff Towers had a duty to protect Plaintiff’s decedent because it was aware of third-party defendant Kett’s prior criminal activities and failed to act. Plaintiff argues that Sea Cliff Towers had prior knowledge of third-party defendant Kett’s criminal activities and conduct and then failed to evict him or take other appropriate action.In reply, Sea Cliff Towers further argues that Burgos v. Aqueduct Realty Corp., 92 N.Y. 2d 544 (1998), is controlling, and that the contents of Plaintiff’s decedent expert witness disclosure are irrelevant under Burgos.The Estate submits an affirmation in of support Sea Cliff Towers application. The Estate points out that Plaintiff’s decedent and third-party defendant Kett were friends, each was aware of the other’s history and, at times, they participated in “bad acts” together. The fact that Sea Cliff Towers may have been aware of other bad acts, without more, does not make the stabbing attack foreseeable. Plaintiff’s decedent’s history with third-party defendant Kett and his voluntary association with third-party defendant Kett would establish “a totally assumption of risk on his part.” The Estate, without making a formal motion, asks the Court to review the record and dismiss plaintiff’s complaint because Plaintiff’s decedent will not be able to prove pecuniary loss or liability against The Estate.In reply to The Estate’s affirmation in support, Sea Cliff Towers argues that failing to grant summary judgment dismissing the complaint would render Sea Cliff Towers an insurer against any injury resulting from criminal conduct by known associates against each other.II. Summary Judgment StandardCPLR §3212 allows the Court to grant summary judgment only if it is clear, as a matter of law, that there are no material triable issues of fact Guggenheim Foundation v. Lubell, 77 N.Y.2d 311 (1991); Ugarriza v. Schmeider, 46 N.Y.2d 471 (1979). This is true even if a movant has adduced strong evidence in support of its motion Roman Maronite Catholic Church v. Met. Heat & Power Co., 137 A.D.2d 513 (2d Dep’t., 1988). Where the court entertains any doubt as to whether a triable issue of fact exists, summary judgment must be denied Daliendo v. Johnson, 147 A.D.2d 312 (1st Dep’t 1989). The Court’s role in a summary judgment motion is limited to issue finding, not issue resolving Amatulli v. Dehli Const. Corp., 77 N.Y.2d 525 (1991).The proponent of a motion for summary judgment must make a prima facie showing by offering sufficient evidence to eliminate any material issues of fact from the case that as a matter of law the movant is entitled to summary judgment Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 (1985). Once the movant has met this prima facie showing, the burden then shifts to the opposing party who must ‘demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action…” Zuckerman v. City of New York, 49 N.Y.2d 557, 560 (1980). Unsupported allegations or conclusory assertions are insufficient to create bona fide issues of fact which are necessary to defeat the motion for summary judgment Kowalczyk v. Two Trees Management, 51 Misc. 3d 1211(A) (Civil Ct, Kings County 2016) citing Rotuba Extruders, In., v. Ceppos, 46 N.Y.2d 231 (1978).Summary judgment is a drastic remedy that deprives litigants of their day in court, the burden on the moving party or parties for such relief is a heavy one Rotuba Extrudens v. Ceppos, 46 N.Y.2d 223 (1978); Andre v. Poweroy, 35 N.Y.2d 361 (1974). All evidence must be viewed in a light most favorable to the opposing party or parties Gant v. Sparacino, 203 A.D.2d 515 (2d Dep’t., 1994) and the application should be denied where there is any doubt as to the existence of a triable issue of fact or where an issue is even arguable Museums at Stony Brook v. Village of Patchogue Fire Department, 146 A.D.2d 572 (2d Dep’t., 1989); Elzer v. Nassau County, 111 A.D.2d 212 (2d Dep’t., 1985).III. DiscussionA landlord has a common-law duty to take minimal precautions to protect tenants from foreseeable harm from a criminal attack from third parties Mason v. U.E.S.S. Leasing Corporation, 96 N.Y.2d 875 (2001); Burgos v. Aqueduct Realty, supra; Novikova v. Greenbriar Owners Corp., 258 A.D.2d 149 (2d Dep’t., 1999). This duty extends to the guests of a tenant Brathwaite v. NYCHA, 92 A.D.3d 821 (2d Dep’t., 2012). In criminal attacks by a tenant against a third party at the premises, the plaintiff must establish that the landlord had the ability or a reasonable opportunity to control the aggressor…(and) it must be established that the harm complained of was foreseeable” Firpi v. NYCHA, 175 A.D.2d 858, 859 (2d Dep’t., 1991]; citations omitted).To establish that a criminal act is foreseeable, it must be demonstrated that the conduct was reasonably predictable based on a prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location Muzafarov v. Casallas-Gonzalez, 2018 WL 3863196 (2d Dep’t., 2018); Golub v. Louris, 153 A.D.3d 903 (2d Dep’t., 2017); Karim v. 89th Jamaica Realty Co., L.P., 127 A.D.3d 1030 (2d Dep’t., 2015). The operative proof must be limited to crimes occurring in the same building Jacqueline S. by Ludavina S. v. City of New York, 81 N.Y.2d 288 (1993); Miller v. State of New York, 62 N.Y.2d 506 (1984); Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507 (1980). Without proof of such notice, the owner’s duty to reasonably protect those using the premises from such activity never arises, Golub v. Louris, supra.Foreseeability “depends on the location, nature and extent of previous criminal activities and their similarity, proximity or other relationship to the crime” Jacqueline S, supra at 295; Novikova, supra at 153. As court’s have previously stated, “once an injury has occurred, the risk becomes obvious and it is tempting with the benefits of hindsight to conclude the risk was unreasonable and the harm foreseeable” Bouraee, M.D. v. Lutheran Medical Center, 6 Misc. 3d 1027(A) [ Sup Ct, Kings County 2005] citing Sanchez v. State of New York, 99 N.Y.2d 247, 258 (2002).Whether notice of criminal activity provides sufficient experiential evidence or foreseeability is based on numerous factors such as location, nature and extent of previous criminal activities and their similarity and proximity or other relationship to the crime in question which would make the risk of harm to the tenants reasonably foreseeable Venetal v. City of New York, 31 A.D.3d 1087 (2d Dep’t., 2005). Even if the landlord has notice of a foreseeable threat and is notified about a tenant’s aggressive conduct it must first be established that a landlord had the ability or a reasonable opportunity to control the aggressor Firpi v. New York City Hous. Auth., supra citing Blatt v. New York City Hous. Auth., 123 A.D. 2d 591 (2d Dep’t., 2004); see also for examples Browne v. GRMI Inc., 6 AD3d 640 (2d Dep’t., 2005) where fistfights were too dissimilar to shooting to be foreseeable; Milton v. I.B.P.O.E. of World Forest Lodge, 121 A.D.3d 139 [3d Dep’t., 2013) where prior minor disturbances were not sufficiently similar to a knife assault to make assault foreseeable; Firpi v. New York City Hous. Auth., supra, and Beato v. Cosmopolitan Associates LLC, 69 A.D.3d 774 (2d Dep’t., 2010) where previous complaints of loitering and suspected drug sales in lobby of building was insufficiently similar to assault by group of individuals to make assault foreseeable; Milton, supra, and Six Anonymous Plaintiffs v. Gehres, 68 A.D.3d 1177 (3d Dep’t., 2009) and Muzafarov v. Casallas-Gonzalez, supra and Johnson v. New York, 7 A.D.3d 577 [2d Dep’t., 2004)where ambient neighborhood crime standing alone, is insufficient to establish foreseeability of a particular criminal encounter.Here, Sea Cliff Towers makes out a prima facie showing of entitlement to summary judgment because they did not have a reasonable opportunity or effective means to prevent or remedy third-party defendant’s conduct. Based on the evidence before the Court, the incident arose from a purely personal dispute between Plaintiff’s decedent and third-party defendant Kett and was not foreseeable Britt v. New York City Hous. Auth., 3 A.D.3d 514 (2d Dep’t., 2004); Firpi v. New York City Hous. Auth., supra.In opposition, Plaintiff, using carefully edited and abridged6 deposition transcripts of Sea Cliff Towers witness Harry Hicks taken on June 28, 2006, misinterprets the witnesses’ tentative and irresolute recollections into positive statements of serious criminal activities. Thus, Mr. Hicks’ vague and indecisive recollections of an attempt to evict third-party defendant Kett years prior to the incident evolves into uncontested fact; third-party defendant Kett’s drug addiction evolves into drug sales, and one noise complaint a year prior to the within incident becomes drug dealing.Mr. Hicks’ information about third-party defendant Kett was acquired second hand from a few other tenants, information that people made some complaints but never came forward is presented as proof positive of ongoing criminal activity. Likewise, Mr. Hicks’ recollection of a few incidents of possible noise issues and drug use in the few weeks and months leading up to the stabbing death is interpreted as proof positive of the “fact” that the board had knowledge of dangerous crimes and failed to act. Further, Mr. Hicks’ explanation that the board had never called the police as stated in a newspaper article was in fact a statement to the reporter that individual residents may have called the police regarding noise complaints.In opposition to Defendant’s prima facie showing of entitlement to Summary Judgment, plaintiff has failed to show how the acts that were known to Sea Cliff Towers would put them on notice as to the foreseeability of a stabbing assault on the Plaintiff’s decedent.At best plaintiff establishes that Sea Cliff Towers had knowledge that third-party defendant Kett’s criminal activities involved loitering, drug use and possible drug sales7, excessive noise and visitors. Plaintiff’s bald conclusion that the board was aware of third-party defendant Kett’s criminal conduct involving two incidents of assault years prior (one of which was not prosecuted) is not supported by the facts. Similarly, there can be no reasonable expectation that the board could act on the several known incidents of the preceding several months in time to effectuate an eviction.Plaintiff also fails to address the fact that Plaintiff’s decedent and third-party defendant Kett were friends who regularly interacted with each other in and out of the subject premises.In light of the above, Defendant Sea Cliff Towers motion for summary judgment is granted in its entirety the complaint and all cross claims are dismissed as against Sea Cliff Towers Owners Corp.The issue of indemnification is rendered moot.It is well settled that a court may search the record and grant summary judgment in favor of a nonmoving party with respect to a cause of action or issue that is the subject of motion practice before the court CPLR §§2215 and 3212(b); Dunham v. Hilco Const. Co., Inc., 89 N.Y.2d 425 (1996); Rosenblat v. St. George Health and Racquetball Association, LLC, 119 A.D.3d 45 (2d Dep’t., 2014); In re Mercer, 113 A.D.3d 772 (2d Dep’t., 2014); Country Harbor Realty, Inc. v. Sullivan, 23 A.D.3d 606 (2d Dep’t., 2005); Osborne v. Zornberg, 16 A.D.3d 643 (2d Dep’t., 2005). Upon a search of the record and in the interests of justice the application of The Estate in its Affirmation in Partial Support, is granted and the complaint and all crossclaims as against it are dismissed.This constitutes the decision and order of the Court.Dated: September 5, 2018Staten Island, New York
