Martinez v National Amusements, Inc.
Annotate this CaseDecided on April 7, 2006
Supreme Court, Bronx County
Derrick Martinez, Plaintiff,
against
National Amusements, Inc. d/b/a WHITESTONE MULTIPLEX CINEMAS and SECURITY ENFORCEMENT BUREAU, INC., Defendants.
22541/2002
Plaintiff
Peter D. Morris 60 East 42nd Street -Suite 3126 New York, NY 10164
Defendant
Rubin Fiorella & Friedman 292 Madison Avenue - 11th fl New York, NY 10017
Cartafalsa, Slattery & Associates 560 White Plains Road-Suite 300 Tarrytown, NY 10591
John Marshall, Esq. P.O. Box 782 Plainview, NY 11803
Norma Ruiz, J.
Defendant Security Enforcement Bureau, Inc. (SEB) moves and defendant National Amusements, Inc ("National") cross moves for summary judgment. After review of the motions, together with opposition submitted thereto, and upon due deliberation, the motions are granted.It is alleged that on March 8, 2002 the plaintiff along with his girlfriend Elsie Cordova ("Cordova") and her friend, Yvette Marti ("Marti") went to the Whitestone Multiplex Cinemas ("Whitestone") located in the Bronx to watch a midnight showing of All About The Benjamins. [*2]The Whitestone was owned and operated by National. National hired SEB to provide security for its premises. After purchasing their tickets, the plaintiff and his companions walked over to movie theater number twelve (12) and took seats in the middle section of seating. When they initially entered the theater the movie screen was blank and music was playing. Shortly thereafter, the plaintiff saw a group of six to seven African American males between the ages of twenty two (22) and twenty six (26) ("the group") enter the theater. The group walked down the aisle and also took seats in the middle seating approximately five rows in front of the plaintiff. Said group was described by the plaintiff as speaking loudly and acting boisterous. He defined boisterous as being rowdy, using profanity and acting in a disruptive manner. According to the plaintiff each member of the group belonged to the gang known as the "Bloods". He ascertained this from the fact that they all had red bandanas hanging from their pant's rear pocket. Also, they used specific "hand signals" to communicate with a different group of individuals that were seated in the left section of the theater. The plaintiff's familiarity with gangs came from his experience in working as a corrections officer in Sing Sing correctional facility.
Eventually the theater began to display the coming attractions. When the group continued to act in a "boisterous" manner, the plaintiff exited theater twelve (12) and approached a security guard stationed in the lobby and complained of the situation. The plaintiff alleges that he identified himself as a corrections officer and informed the security guard that there was a group of guys acting loud and boisterous. He asked the security guard to go to theater (twelve [12]) and show his presence so that the group could calm down before the movie started. The security guard informed the plaintiff that someone else also complained about the group and that the police were called and on their way. According to the plaintiff, a few minutes after the plaintiff returned to the theater and took his seat, the main attraction began to play. Despite the start of the main attraction, the group continued to act boisterous. As such, the plaintiff asked one of the young men in the group to sit down. In response, the individual walked over to the plaintiff and began using profanity. After an exchange of words, the plaintiff was assaulted and "cut" by various members of the group. The fight stopped when the theater lights were turned on. Thereafter, the group ran out the exit doors and fled from the theater. According to the plaintiff, no security guard entered the theater until after the gang members began assaulting him.
SEB moves for summary judgment dismissing the plaintiff's complaint and all cross claims on the ground that SEB did not owe the plaintiff any duty of care. Movant relies on the body of law that stands for the principle that an injured party may not recover as a third party beneficiary to a contract unless the provisions of the contract clearly express an intention to directly benefit the injured party by protecting him from harm. See Church v. Callanan, Indus., 99 NY2d 104 (2002); Jones v New York City Housing Authority, 293 AD2d 371 (1st Dept. 2002); Rudel v. National Jewelry Exchange Co., 213 AD2d 301 (1st Dept 1995). Movant argues that in the contract between SEB and National there is no intent to directly benefit an injured party as such it is entitled to summary judgment.
The plaintiff argues in opposition that SEB's motion should be denied because a question of fact exist as to whether or not an exception to the general rule that a contractor does not owe a duty of care to a non-contracting third party exist in the case at bar. Plaintiff contends that SEB's failure to respond to the theater increased the risk of harm to the plaintiff. Plaintiff's counsel contends that if the security guard had entered the theater and "shown his presence" as [*3]requested, this attack upon the plaintiff "might never have occurred." Plaintiff relies on the Appellate Division First Department decision in Genen v. Metro-North Commuter Railroad, 261 AD2d 211 (1st Dept. 1999) which held in essence that when a contractor , by its affirmative acts of negligence has created or increased a dangerous condition which is the proximate cause of plaintiff injuries, it may be held liable in tort. Id. See also Figueroa v. Lazarus Burman Assoc., 269 AD2d 215 (1st Dept. 2000).
According to the plaintiff, the verbal exchange of words and the subsequent assault occurred after the plaintiff asked one of the gang members to sit down. That being the case, the Court finds that the plaintiff's theory that a security guard presence could have avoided this attack upon the plaintiff is speculative. Especially since there was no security expert testimony submitted in support of such allegation. See Richard v. Roseland Amusement and Dev. Corp., 215 AD2d 240 (1st Dept. 1995). As such, the plaintiff failed to raise an issue of fact with respect to whether or not SEB by its affirmative acts of negligence created or increased a dangerous condition which was the proximate cause of plaintiff injuries.
Here, the plaintiff was not a third party beneficiary of the contract between National and SEB. The Court finds the facts as alleged by the plaintiff do not rise to any of the exceptions to the general rule that a contractor does not owe a duty of care to a non-contracting third party. See generally Church, supra; Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136 (2002).
Accordingly, the SEB's motion is granted.
National crossed moved for summary judgment dismissing the plaintiff's
complaint on the grounds that it fulfilled its duty to take minimal security precautions and that it
can not be held liable as a result of an unforeseeable assault by third persons.
As the owner, National owes the individuals on its property a duty of reasonable care under the circumstances to maintain its property in a safe condition. See Maheshwari v. City of New York, 2 NY3d 288 (2004). Despite landlords common-law duty to minimize foreseeable dangers on their property, including the criminal acts of third parties, they are not the insurers of a visitor's safety. Maheshwari, supra. "[F]oreseeability and duty are not identical concepts. Foreseeability merely determines the scope of the duty once the duty is determined to exist. In cases arising out of injuries sustained on another's property, the scope of the possessor's duty is defined by past experience and the likelihood of conduct on the part of third persons . . . which is likely to endanger the safety of the visitor'." Id.
"Where the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence. An intervening act may break the causal nexus when it is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct'." Maheshwari, supra (citations omitted).
National persuasively argues that the record is devoid of any evidence that it knew of any similar occurrences or should have anticipated this type of spontaneous attack. Although its witness conceded that gang members attended the cinema as frequently as every other weekend, National alleges that since there is no evidence of any gang related assaults or unruly behavior the attack on the plaintiff was not foreseeable. Thus, National should not be held liable. [*4]
On the issue of foreseeability, the plaintiff's opposition failed to include any documentary evidence such as prior incident reports or police records of any similar type of criminal activity at the cinema. In addition, none of the witnesses testified to any prior assaults or similar incidents. At most, some witnesses testified to verbal altercations which allegedly never escalated to anything physical.Thus, the Court finds that the plaintiff failed to raise a question of fact as to the foreseeabilty of the assault in question. As such, the motion must be granted.
Accordingly, SEB' summary judgment motion to dismiss the plaintiff's complaint and National's cross claims and National's summary judgment cross motion to dismiss the plaintiff's complaint are both granted. Upon proof of service of this order with notice of entry, the Clerk of the Court is hereby directed to dismiss the plaintiff's complaint.
This constitutes the decision and order of the Court.
Dated:April 7, 2006
Bronx, New YorkNORMA RUIZ, J.S.C.
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