Swinson v City of New York

[*1] Swinson v City of New York 2014 NY Slip Op 50279(U) Decided on February 28, 2014 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 28, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570013/14.

Darren Swinson Plaintiff-Respondent,

against

City of New York, Volunteers of America Greater NY Defendants-Appellants.

Defendants appeal from an order of the Civil Court of the City of New York, New York County (Frank P. Nervo, J.), entered May 1, 2013, which denied their motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Frank P. Nervo) entered May 1, 2013, reversed, without costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Plaintiff's unparticularized allegations that he sustained "worsening migraines" as a result of vaguely described "harass[ing] and threaten[ing]" conduct on the part of a neighboring tenant (nonparty Donnell Cunningham) at the SRO hotel in which they both reside were insufficient to impose liability upon defendants, the owner and managing agent of the hotel premises. Even assuming that the conduct attributed to Cunningham constituted some form of "harassment" or other actionable conduct, no showing was made that defendants "had the ability or a reasonable opportunity to control the [alleged] aggressor[] and that the harm complained of was foreseeable" (Simms v St. Nicholas Ave. Hotel Co., 187 AD2d 373 [1992], lv denied 81 NY2d 704 [1993]; see Hughes v City of New York, 238 AD2d 477 [1997]). Thus, defendants' motion for summary judgment dismissal of the complaint should have been granted.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 28, 2014