The New York Supreme Court, Appellate Division, Second Department reversed a trial court order that denied summary judgment to two landlords of a restaurant whose employees attacked the plaintiff.
One day, the plaintiff was walking down the sidewalk of New Utrecht Avenue in Brooklyn, New York. There is a restaurant that spans 6010 and 6012 New Utrecht Avenue. AYT Realty owns 6012 New Utrecht, and 6010 Realty owns 6010 New Utrecht. As the plaintiff was outside of the restaurant, for reasons unknown, a group of men beat him. According to the plaintiff, two of the men worked at the restaurant.
The plaintiff filed a claim with the Department of Social Services of the City of New York, and the Department of Social Services covered his medical expenses and then initiated a claim against the 6010 and AYT for reimbursement. The plaintiff also filed a lawsuit against AYT and 6010 to recover damages for personal injuries. AYT and 6010 moved jointly for summary judgment.
Property owners are required under New York Law to prevent harm to guests on their property. This includes maintaining safe premises in order to prevent accidents. This also covers third parties injuring others on their premises. The landlords have a duty to control third parties if (1) they are able to control such persons and (2) they are aware that control is necessary.
This duty to control is hinged on whether the landowner is aware. The landlord must take steps to reduce the risk of criminal acts and to protect guests when the landlord either is or should be aware that the third parties’ actions will endanger the guests.
A common legal principle found in civil lawsuits is foreseeability. Defendants will be liable for foreseeable injuries. Thus, if the criminal acts were foreseeable by the landowner, the landowner will be liable for them if he fails to take reasonable actions to control them.
How will a landlord know if a criminal act is foreseeable? Usually the act will be reasonably predictable. This prediction could be based off of past criminal acts that the landlord is aware of at the property. For instance, if a bar owner is familiar with one of its bartenders constantly assaulting customers when they tip poorly, the bar owner could be said to be put on notice of its bartender’s behavior. Any future assaults against poor tippers will be foreseeable due to their predictability.
A bar owner, however, will be intimately familiar with its bartender’s behavior because the bar owner is presumably very involved in the affairs of the bar. Here, AYT and 6010 were mere landlords. They leased the property to the restaurant. They had no other affiliation with the restaurant. Therefore, they are termed “out-of-possession landlords.”
The plaintiff argued that AYT and 6010 were not “out-of-possession” because AYT and 6010 had offices next to the restaurant. However, they did not own or operate the restaurant nor were they familiar with the employees.
An out-of-possession landlord will not be held liable for any injuries that occur due to criminal conduct of third parties such as employees unless the landlord either somehow maintains control of the property or contracts with the renter to provide security. Neither of these two factors applied to AYT and 6010.
Because AYT and 6010 were out-of-possession landlords, they did not owe a duty to the plaintiff to control third parties and prevent criminal conduct by third parties. Thus they established a prima facie case for summary judgment.
In his opposition, the plaintiff argued that AYT and 6010 had notice of prior criminal activity but was unable to raise a genuine dispute of material fact on this issue. The trial court therefore should have granted summary judgment and dismissed the case.
In addition, because summary judgment for the defendants was proper, the Department of Social Security claim against the two defendants was also dismissed.
If you or a loved one has been injured while on another’s property, you may have legal recourse. Contact the skilled personal injury attorneys at Gallivan & Gallivan today to discuss your potential premises liability case.