Decorato v Cozzoli Bros., LLC

[*1] Decorato v Cozzoli Bros., LLC 2007 NY Slip Op 51347(U) [16 Misc 3d 1108(A)] Decided on July 10, 2007 Supreme Court, Kings County Schack, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 10, 2007
Supreme Court, Kings County

Costantino Decorato, as Administrator of the Estate of CONSTANTINO DECORATO, deceased, and COSTANTINO DECORATO, individually, Plaintiffs,

against

Cozzoli Brothers, LLC, TELCO DISCOUNT OF AVENUE U, INC., and TASK FORCE SECURITY & INVESTIGATIONS, INC., Defendants.



39433/04

Arthur M. Schack, J.

This action resulted from a brutal armed robbery and homicide at 109 Avenue U,

Brooklyn, New York. The premises were then owned by defendant Cozzoli Brothers, LLC (Cozzoli), an out of possession landlord. Cozzoli leased the premises to defendant Telco Discount of Avenue U, Inc. (Telco), who operated a discount variety store at the Avenue U location. Telco contracted with defendant Task Force Security & Investigations, Inc. (Task Force) for security services, including the presence of a security guard at the store.

It is uncontroverted that decedent Constantino Decorato (Tino), was shot in his stomach, inside the premises, by an unknown assailant during a robbery at approximately 7:00 P.M. on July 23, 2004. Tino died of his wounds later that evening. He was employed by T & E Stores, Inc. (T & E), Telco's parent company. Tino's estate sued defendants for negligent security and wrongful death, and his father sued for loss of his son's services.

There are two motions before the Court. First, defendant Telco moves for

summary judgment, pursuant to CPLR Rule 3212, dismissing the complaint and all cross-claims against it, alleging that: Telco, as Tino's "special employer" granted death benefits to Tino's estate pursuant to the exclusive remedy of the Workers' Compensation Law; [*2]and, Telco cannot be responsible for an unforeseeable violent homicide. Defendant Cozzoli also moves for summary judgment, pursuant to CPLR Rule 3212, dismissing the complaint and all cross-claims against it, alleging that as an out of possession landlord, and pursuant to the terms of its lease with Telco, it is not responsible for security at the premises and Tino's tragic death.

In reviewing the facts in this case, and applying applicable law, the Court denies Telco's motion for summary judgment. Tino was not a "special employee" of Telco. Thus, Tino's estate has a cause of action against Telco. Telco assumed the duty of providing premises security, which appeared inadequate. Task Force's security guard disappeared during the July 23, 2004 tragic holdup and homicide. Once a party undertakes a duty, due care must be exercised. There are triable issues of fact as to whether Telco's attempts to provide security were negligent. With respect to defendant Cozzoli, there are no triable issues of fact. Cozzoli, the out of possession landlord, was not responsible for premises' security at 109 Avenue U.Cozzoli's motion for summary judgment is granted.

Background

According to the affidavit of Gerald Weinstein, T & E's Controller [exhibit A of Telco's motion], T & E is owned by two brothers, Ted and Elliott Serure. T & E operates seven stores in Brooklyn, Staten Island, and Queens. Three stores are directly operated by

T & E, and the other stores are operated through subsidiaries, including Telco.

Mr. Weinstein states in ¶ 12 of his affidavit that "[f]rom a home office location at 6628 18th Avenue in Brooklyn, T & E uniformly provided payroll, insurance (including workers compensation insurance), financial, accounting, and organizational management to each of the three operating subsidiaries including Defendant Telco Discount of Avenue U." Mr. Weinstein makes it clear in his affidavit and in his EBT, pp. 14-22 [exhibit B of Telco's motion], that while Telco had its own regular staff, they were all paid by T & E. Further, T & E acquired all inventory for sale, paid all expenses, including the rent to Cozzoli, and contracted for an unarmed security guard with Task Force. Mr. Weinstein states, in ¶ 23of his affidavit, that "[e]ach and every cost of doing business of Telco Discount of Avenue U was paid by T & E, out of T & E's own bank account." He then declares, in ¶ 5 of his affidavit attached to Telco's reply affirmation in support of the motion, that Telco is "essentially a corporate shell, all of whose affairs were operated and paid for by T & E." Additionally, Mr. Weinstein claims that Tino did not report to T & E, but to Telco's manager, Svetlana Makayev (Lana) and her assistant manager, Hussain Asmat. However, both Ms. Makayev and Ms. Asmat were T & E employees, like Tino. Ms. Makayev confirms that she was a T & E employee, at p. 7 of her EBT [exhibit C of Telco's motion].

Attached to Mr. Weinstein's affidavit is the New York State Workers' Compensation Board's Form C-2 incident report, prepared by Mr. Weinstein. Mr. Weinstein states that Tino's employer is "T & E Stores, Inc.," not Telco. Further, the nature of the injury was [*3]"gunshot wound to stomach." It states that at the time of the incident the employee was "lowering gates to front of store." In answer to "how did the accident or exposure occur," Mr. Weinstein stated:

3 armed, masked robbers forced Constantino Decorato back into

the store. They ran down the steps to the basement. Our manager

was in the office. She pressed the main panic button and summoned

the police/EMS. Another employee Boris Dekhtyar was struck over

the head with the assailant's gun.

The assailant was forcing a customer and Mr. Decorato to the

rear of the store with the gun in the back of the customer, when the

gun went off grazing the customer and hitting Mr. Decorato. He died

shortly after arriving at Coney Island Hospital.

Police report No. UF61 64969. 62nd Precinct. [Sic]

According to the depositions of the store manager, Lana, and Tino's twin sister, Silvana Decorato (Silvana) [exhibit D of Telco's motion], a cashier at the store, each day at closing time the store followed various procedures, which included bringing into the store coin-operated kiddie rides about 30 minutes prior to closing, and then lowering various gates about 15 minutes prior to closing.

Lana testified that Tino worked at the Avenue U store as the Receiving Manager [EBT at p. 59]. She testified that there was a central alarm system in her office, at the rear of the store [pp. 41-42]. She said, at p. 47, lines 11-13 that Task Force "had a guard stationed by the door, checking bags, overseeing the floor and making sure that everything goes smoothly." The guard usually was an unarmed, uniformed man named "Joseph" [pp. 47-49]. Tino's duties included assisting with closing procedures, making sure that customers left the store and bringing down and locking gates in the front of the store [p. 63]. At the time of the incident, Lana was behind a cash register when she saw fighting in the front of the store [pp. 71-72]. She stated at p. 71, l. 24-p. 72, l. 4, that "I was behind the register when I saw a fighting in front of the store [sic]. I believe there were three males wearing yellow rain jackets, masks on the faces and duct tape on them all, and I saw my boys were fighting with them." Lana described the three perpetrators as wearing black ski masks, having hoods covering their heads, and their mouths covered with duct tape [pp. 76-77]. Lana subsequently ran to her manager's office in the rear of the store, locked the door behind her, rang the alarm button and called the police [pp. 85- 88].

Lana testified, with respect to the actions of Joseph the security guard, at p. 102,

l. 11-p. 103, l. 9:

Q. Prior to seeing these criminals come to the store and fight with

the employees, when was the last time that you saw Joseph, the

security guard?

A. He was in the front, I saw him there. [*4]

Q. Did you see Joseph before the criminals came into the store?

A. Yes.

Q. Did you see Joseph while the criminals were in the store?

A. No.

Q. What, if anything, was Joseph doing in the front of the store

when you last saw him?

A. Just standing there.

Q. While you witnessed the fight, did you ever see Joseph?

A. No.

Q. While you were in the back of the manager's room, did you ever

see Joseph?

A. No.

Tino's sister, Silvana, testified in her EBT that she was a cashier at the time of the

incident [p. 9]. When the three masked men entered the store, she first saw them in the front of the store beating a customer and then Boris, the stock boy [p. 16]. Silvana and the other cashiers went to the receiving room in the rear of the store to gain access to the basement [p. 34]. She was asked, at p. 34, l. 17, "Do you know where Lana was when these two people were beating Boris?" Silvana replied at p. 34, l. 19, "Hiding in the office." At the end of the incident, when emerging from the basement, she saw her brother Tino on the floor near the manager's office [pp. 42-43]. Tino was unresponsive to her, other than opening his eyes [pp. 45-46]. When asked about Joseph the security guard, at p. 66, lines 11-17, she testified:

Q. The security guard who you said was upstairs when the incident

took place, did he also join you downstairs?

A. No.

Q. Did you ever see him again after the incident when you came up?

A. No.

Mr. Weinstein, in ¶ 29 of his affidavit in support of the motion, states that

"[e]xcepting occasional surreptitious and non-violent shoplifting, there was no history of criminal activity whatsoever at the Avenue U Telco Stores location." In his reply affirmation in support of the motion, in ¶ 8, plaintiff's counsel states that through the affidavit of Mr. Weinstein, and the EBT's of Mr. Weinstein, Lana, and Silvana, "there were no history of prior crime such as would be legally necessary to support the existence of a duty as claimed by Plaintiffs." Mr. Weinstein and plaintiff's counsel fail to mention United States v Skowronski, 968 F2d 242 (2d Cir 1992), which affirmed the conviction of Richard Skowronski's violation of the Hobbs Act, 18 USC § 1951, for engaging in a conspiracy to obstruct, delay and affect commerce, by robbing the Telco Avenue U store, in which Tino was later killed. Skowronski, who was sentenced to 57 months imprisonment, was caught with his co-conspirators by the FBI through the use of court-authorized wiretaps. In describing the planned robbery, the Court said, at 244: [*5]

[t]he evidence showed the following.

In late 1989, Richard Skowronski, then a college student,

worked part-time at the Telco Jewelry ("Telco") store on Avenue U

in Brooklyn, New York. The store carried an inventory worth about

$300,000; when closed, it was protected by security gates lowered

over the door and display windows. From Thanksgiving through

the end of the Christmas season, the store remained open until 9:00

p.m., and during evening business hours it was protected by security

guards. The store was managed by Skowronski's mother. In addition

to Skowronski and his mother, it employed three women, and the

owner testified that store policy normally required that at least three

employees be present at all times. Skowronski's mother, called to

testify in his behalf, testified that at all times during the Christmas

season there were at least four employees plus a guard in the store,

and that at times the total rose to seven.

While Skowronski and his co-conspirators were caught before the commission of the planned robbery, there were planning to use force if necessary. The Court held, at 249, that:

[T]he evidence at trial included ample direct and circumstantial

evidence that the coconspirators had intended to be armed and to

display guns when they robbed the Telco store. First, it was inferable

that they planned to be armed from the fact that they knew that (a)

noncooperating persons, i.e., persons other than Skowronski, would

be present, and (b) the store employed security guards . . . Finally,

in recorded conversations, Tinnirello and DiSomma [co-conspirators]

discussed their possession of "murrays," a code word the jury could

infer meant guns.

Defendant Cozzoli owned the 109 Avenue U premises where Telco ran its business. Robert Cozzoli, Cozzoli's Secretary, in his EBT [exhibit I of Cozzoli's motion] testified, at p.15, that Telco had rented the premises from the early 1980's. In his affidavit attached to Cozzoli's motion [exhibit J of Cozzoli'a motion], Mr. Cozzoli states that Cozzoli had no involvement with the operations of the Telco store and did not control or maintain security at the premises.

The Lease in effect at the time of the incident was a standard store lease, giving possession to Telco. Under various clauses of the Lease, Cozzoli was not responsible for maintenance and repairs. § 48 of the Lease sated:

Tenant at its own cost and expense is responsible for all

maintenance and repairs for the leased premises including without

limitation the heating, electrical, plumbing and mechanical systems,

the roof and sidewalks. Landlord shall be responsible for all structural maintenance [*6]and repairs for the leased premises except for the roof,

but Landlord must Tenant with the existing guaranty on the roof.

Cozzoli, as landlord, could only enter the premises during reasonable business hours, except for an emergency. § 63 of Lease stated:

In the event Landlord requires access to the premises, Landlord

shall be permitted on the premises during reasonable business hours

of Tenant except in the case of emergency where Landlord shall be

permitted to enter the premises at such time as may be necessary.

Where feasible, Landlord agrees to request access to the premises by

Certified Mail to Tenant setting forth the date and time of such access.

§ 8 of the Lease provides that "Owner or its agent shall not be liable . . . for any injury or damage resulting from any cause of whatsoever nature, unless caused by or due to the negligence of Owner, its agents, servants or employees." § 43 of the Lease states, "Tenant shall indemnify and hold harmless the Landlord from and against any and all claims, suits . . . to persons or property which may result from the use, occupancy, operation or maintenance of the demised premises."

Summary Judgment Standard

The proponent of a summary judgment motion must make a prima facie showing

of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. See Alvarez v Prospect Hospital, 68 NY2d 320, 324 (1986); Zuckerman v City of New York, 49 NY2d 557, 562 (1980); Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Matter of Redemption Church of Christ v Williams, 84 AD2d 648, 649 (3rd Dept 1981); Greenberg v Manlon Realty, 43 AD2d 968, 969 (2nd Dept 1974); Winegrad v New York University Medical Center, 64 NY2d 851 (1985).

CPLR 3212 (b) requires that for a court to grant summary judgment the court must

determine if the movant's papers justify holding as a matter of law "that there is no defense to the cause of action or that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 (2d Dept 1990). Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065 (1979).

The decedent was not a "special employee" of Telco

In examining the evidence in the light most favorable to the non-movant plaintiffs, there are triable issues of fact with respect to whether defendant Telco was negligent in providing security at the store for its failure to provide due care. Before analyzing that issue, the Court determines that Tino was not a "special employee" of Telco. This allows [*7]plaintiffs to pursue their causes of action against Telco.

It is undisputed that Tino's estate received funeral benefits from the New York State Workers' Compensation Board. Martin Minkowitz in his Practice Commentaries (McKinney's Cons Laws of NY, Book 64 WCL § 29) explains that "[a]n employee cannot sue his employer or a fellow employee for an accidental injury, which arose out of and in the course of the employment. This is prohibited by the exclusive remedy doctrine (see §§ 11 and 29 (6) WCL)." Telco claims that Tino was its "special employee" and the Workers' Compensation benefits received through T & E as Tino's "general employee," were the exclusive remedies available by decedent's estate and father against Telco.

The Court of Appeals, in Thompson v Grumman Aerospace Corporation, 78 NY2d 553 (1991), analyzed the distinctions between a "general employee" and a "special employee." The court, at 557, instructed that:

We have consistently found as a general proposition that a

general employee of one employer may also be in the special employ

of another, notwithstanding the general employer's responsibility for

payment of wages and for maintaining workers' compensation and

other employee benefits (Stone v Bigley Bros., 309 NY 132; Irwin v

Klein, 271 NY 477; Murray v Union Ry. Co., 229 NY 110, 112-113;

Matter of Schweitzer v Thompson & Norris Co., 229 NY 97, 99; see

also, Cameli v Pace Univ., 131 AD2d 419). A special employee is

described as one who is transferred for a limited time of whatever

duration to the service of another (Brooks v Chemical Leamon Tank

Lines, 71 AD2d 405, 407). General employment is presumed to

continue, but this presumption is overcome upon clear demonstration

of surrender of control by the general employer and assumption of

control by the special employer (Stone v Bigley Bros., supra, at 140-143

[and cases cited therein]; Sweet v Board of Educ., 290 NY 73, 76-77;

Irwin v Klein, supra, at 484-485; Ramsey v New York Cent. R.R. Co.,

269 NY 219,224). [Emphasis added]

Further, the Thompson v Grumman Court instructed, at 557-558, that "the determination of special employment status may be made as a matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact." In the instant action, it is crystal clear that Tino was always under the control of T & E and reported to a T & E supervisor. It is undisputed that all the employees working at the Telco store on Avenue U were employed by T & E, not Telco. Tino reported to his manager, Lana, also an employee of T & E. T & E's Controller, Mr. Weinstein, declared in ¶ 5 of his affidavit attached to Telco's reply affirmation in support of the motion, that Telco is "essentially a corporate shell, all of whose affairs were operated and paid for by T & E." Tino was never lent to Telco and therefore was not a "special employee" of Telco, the "corporate shell," set up to limit T & E's liability at the 109 Avenue U store. [*8]Telco has failed to clearly demonstrate that T & E surrendered control of Tino and that Telco assumed control of Tino. See Kramer v NAB Const. Corp., 250 AD2d 818 (2d Dept 1998); Martin v Baldwin Union Free School Dist., 271 AD2d 579 (2d Dept 2000); Hintze v Brookhaven Nat. Laboratory, 278 AD2d 456 (2d Dept 2000);

The Appellate Division, Second Department, in Marrero v Akam Associates, LLC, 39 AD2d 716, 717 (2007), held that "[t]he key to the determination of whether a special employment relationship exists is who controls and directs the manner, details, and ultimate result of the employee's work (see Thompson v Grumman Aerospace Corporation, supra at 558; Martin v Baldwin Union Free School Dist. , supra)." In Thompson v Grumman, David Thompson, a sheet metal mechanic, was employed by ATS, which provided employees to Grumman. ATS paid Thompson and billed Grumman, pursuant to a written agreement. Thompson acknowledged that Dan Schmidt, a Grumman supervisor, directed his work. After being injured at Grumman's Bethpage, New York plant, Thompson received workers' compensation benefits based upon his ATS employment. Thompson sued Grumman for negligence. Grumman claimed that Thompson was its "special employee." Ultimately, Grumman prevailed in the Court of Appeals, with the Court finding, at 558-559, that while ATS paid Thompson and provided benefits to him:

[a]ll essential, locational and commonly recognizable components of

the work relationship were between Thompson and Grumman. As

soon as ATS hired Thompson, it permanently assigned him exclusively

to Grumman's plant on a full-time basis for the entire year prior to the

work-related accident at Grumman's facility. Thompson considered a

Grumman supervisor to be his boss and he knowingly accepted the

terms of his exclusive work at Grumman; thus, he was aware of and

consented to his special employee status . . . He reported daily to this

Grumman supervisor only, who regularly directed, instructed, assigned,

supervised and controlled his work duties. The work Thompson

performed was solely in furtherance of Grumman's business at its

facility. He was recruited and hired by ATS solely to meet Grumman's

specified employee needs. He could not be reassigned by ATS and

his assignment to Grumman could be terminated only by Grumman.

In the instant action, Tino reported to a T & E supervisor, Lana, who controlled and directed his work duties. He worked at Telco to further the needs of T & E. T & E had the power to reassign Tino and terminate Tino. Telco had no supervisors present at the Avenue U location. In fact, Telco, the "corporate shell," had no employees. T & E owned Telco and created it to limit its liability at the Avenue U location. Thus, Telco cannot be the "special employer" of Tino or any of the other T & E employees at the Telco store. There are no triable issues of fact as to whether Tino was Telco's "special employee." Tino, as a matter of law, was not a "special employee" of Telco. He was only [*9]a "general employee" of T & E. See Schramm v Cold Spring Harbor Laboratory, 17 AD3d 661 (2d Dept 2005); Alvarez v Cunningham Associates, L.P., 21 AD3d 517; Navarrete v A & V Pasta Products, Inc., 32 AD3d 1003 (2d Dept 2006). Therefore, plaintiffs are not precluded by the Workers' Compensation Law from suing Telco.

Triable issues of fact about premises security provided by Telco

With respect to Telco's attempts to provide security at the premises, there are triable issues of fact as to whether Telco, the lessee in possession, had a duty to provide security because of its knowledge of prior criminal activity at the premises. Further, in providing security personnel for the premises, there are triable issues of fact as to whether Telco provided premises security with due care.

T & E's Controller, Mr. Weinstein, testified to "occasional and surreptitious non-violent shoplifting" at the premises. Interestingly, Mr. Weinstein and T & E's counsel failed to present the Court with any knowledge of the planned armed robbery of the premises by Richard Skowronski and his criminal cohorts. The Court, in United States v Skowronski, supra, at 244, noted that the store was protected "by security guards," as opposed to the one security guard, Joseph, who disappeared during the instant incident. Further, at 249, the Court held that "the coconspirators had intended to be armed and to display guns when they robbed the Telco store."

In Nallan v Helmsley-Spear, Inc., 50 NY2d 507 (1980), the plaintiff was shot in the back by an unknown assailant while signing a guest register at an unattended desk at about 7:15 P.M. in a midtown Manhattan office building owned and operated by defendants. Usually an attendant would be present at the desk, but that evening the attendant was performing janitorial duties somewhere else in the building. Supreme Court, Nassau County dismissed plaintiff's negligent security claim, and the Appellate Division, Second Department affirmed. The Court of Appeals reversed, finding that plaintiff had made a prima facie case for negligence, reinstated the complaint and ordered a new trial. The plaintiff had presented evidence of prior criminal activity in the building. The Court held, at 519-520:

Although there was no indication in the record that any of these

crimes took place in the lobby area, where plaintiff Nallan was shot,

a rational jury could have found from the history of criminal activity

in the other parts of the building that a criminal incident in the lobby

was a significant, foreseeable possibility. If the jury found that

defendants knew or had reason to know of the prior crimes in the

building and further found that defendants should have anticipated a

risk of harm from criminal activity in the lobby, it properly could

have gone on to conclude that defendants failed in their obligation

to take reasonable precautionary measures to minimize the risk and

make the premises safe for the visiting public.

Further the Nallan Court, at 520-522, on the subject of undertaking a duty to [*10]provide security, noted that if the possessor of the premises voluntarily provided a security guard, the possessor of the premises may be liable for either the absence of the security guard or the negligent performance of the security guard. During the incident resulting in Tino's homicide, Telco's security guard disappeared.

The eminent legal scholar, Judge Benjamin N. Cardozo, in Glanzer v Shepard, 233 NY236, 239 (1922), instructed that, "[i]t is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all."The Nallan Court, at 522, noted that the formula for determining when "one who assumes a duty to act, even though gratuitously, may thereby become subject to the duty of acting carefully" was "articulated by Chief Judge Cardozo as follows" in H. R. Moch Co. v Rensselaer Water Co., 247 NY 160, 167-168 (1928):

If conduct has gone forward to such a stage that inaction would

commonly result, not negatively merely in withholding a benefit,

but positively or actively in working an injury, there exists a relation

out of which arises a duty to go forward . . . The query always is

whether the putative wrongdoer has advanced to such a point as to

have launched a force or instrument of harm, or has stopped where

inaction is at most a refusal to become an instrument for good.

See Kaplan v Dart Towing, 159 AD2d 610, 612 (2d Dept 1990); Gordon v Muchnick, 180 AD2d 715 (2d Dept 1992); Alvino v Lin, 300 Ad2d 421 (2d Dept 2002); Mirza v Metropolitan Life Ins. Co., 2 AD3d 808, 809 (2d Dept 2003); Vetrone v Ha Di Corp., 22 AD3d 835, 837 (2d Dept 2005); Demshick v Community Housing Management Corp., 34 AD3d 518, 520 (2d Dept 2006)

The Court of Appeals in Parvi v City of Kingston, 41 NY2d 553, 559 (1977), held that "[t]he case law is clear that, even when no original duty is owed to the plaintiff to undertake affirmative action, once it is voluntarily undertaken, it must be performed with due care (Marks v Nambil Realty Co., 245 NY 256, 258; Glanzer v Shepard, 233 NY236, 239; Zelenko v Gimbel Bros., 158 Misc 904, affd 247 AD 867)." See Fonville v New York City Health and Hospitals Corp., 300 AD2d 623, 624 (2d Dept 2002); Kowal v Deer Park Fire Dist., 13 AD3d 489 (2d Dept 2004); Bryant v State, 23 AD3d 592, 563 (2d Dept 2005). It is clear that Telco undertook affirmative action to provide a security guard at its 109 Avenue U store. However, a thorough review of the moving papers leaves the Court with triable issues of fact. What happened to Joseph the security guard during the July 23, 2004 crime? Where did Joseph go? Did Telco provide security at 109 Avenue U with due care?

Telco, in providing a security guard at the premises, should have heeded the Court's admonition in Gross v Empire State Building Associates, 4 AD3d 45, 46 (1st Dept 2004):

We live in an uncertain and sometimes unpredictable world

seemingly filled with daily reports of random acts of violence, [*11]

including bombings, shootings and mayhem on our public streets,

in work sites, post offices, fast food restaurants, federal office

buildings, schools, subways and commuter trains and, of course,

the World Trade Center . . . Security has become a pervasive aspect

of everyday life.

Cozzoli is not liable for premises' security

It is clear from the Lease between defendant Cozzoli, the landlord, and defendant Telco, the commercial tenant, that Cozzoli is out of possession. Pursuant to the Lease, Cozzoli reserved rights to enter for structural repairs only during business hours and where feasible after requesting access by certified mail, or could enter during an emergency. Telco was responsible for most maintenance and repairs. Absent a statutory duty, the fact that Cozzoli had reserved its right to inspect and repair is not enough to make Cozzoli liable for the July 23, 2004 tragedy. Less than two months ago, in Nikolaidis v La Terna Restaurant, 40 AD3d 827 (2d Dept 2007), the Court held that, "[a]n out-of-possession property owner is not liable for injuries that occur in the property

unless the owner has retained control over the premises or is contractually obligated to perform maintenance and repairs." Further, the Court instructed, the "[r]eservation of a

right to enter the premises for purposes of inspection and repair may constitute sufficient retention of control to impose liability for injuries caused by a dangerous condition, but only where the condition violates a specific statutory provision and there is a significant structural or design defect." There is no way that Cozzoli could be liable for negligent security at the premises. Cozzoli was not under any statutory duty to provide security. See Scott v Bergstol, 11 AD3d 525 (2d Dept 2004); Couluris v Harbor Boat Realty, Inc., 31 AD3d 686 (2d Dept 2006); Ever Win, Inc. v 1-10 Industry Associates, LLC, 33 AD3d 845 (2d Dept 2006); Lindquist v C & C Landscape Contractors, Inc., 38 AD3d 616 (2d Dept 2007)

The fact pattern in Hepburn v Getty Petroleum Corp., 258 AD2d 504 (2d Dept 1999), is similar to the instant case. Plaintiff Hepburn was the employee of Twenty Gas, Inc., which leased a gas station from defendant Shekel Enterprises, Inc. Hepburn was injured during an armed robbery of the gas station. The lease between Twenty Gas and Shekel provided that Twenty Gas would make repairs and maintain the station. Shekel, the out of possession landlord, retained the right to enter the premises to inspect and make repairs if Twenty Gas failed to do so. Supreme Court, Kings County granted summary judgment to Shekel. In affirming the Supreme Court, the Appellate Division, Second Department, stated:

The Supreme Court properly granted Shekel's motion for

summary judgment dismissing the complaint insofar as asserted

against it since it was an out-of-possession landowner and was not

obligated under the lease to maintain the premises (see, Stark v Port

Auth., 224 AD2d 681,682) . . . Here there is no evidence of a specific [*12]

statutory violation or a structural or design defect. There was also

no evidence that Shekel was involved in the daily operations of the

gas station.

See Carvano v Morgan, 270 AD2d 222 (2d Dept 2000); Jackson v U.S. Tennis Ass'n., Inc., 294 AD2d 470 (2d Dept 2002); Roveto v VHT Enterprises, Inc., 17 AD3d 341 (2d Dept 2005); Yadegar v International Food Market, 37 AD3d 595 (2d Dept 2007); Rhian v PABR Associates, LLC, 38 AD3d 637 (2d Dept 2007).

Cozzoli established its prima facie entitlement to summary judgment and dismissal of the complaint and all cross-claims against it by demonstrating that it relinquished control of the leased premises to Telco, and that no statutory violations existed. In opposition, plaintiffs failed to demonstrate the existence of issues of material fact with respect to Cozzoli as the out of possession landlord bearing any responsibility for premises' security.

Conclusion

Accordingly, it is

ORDERED that defendant Telco Discount of Avenue U, Inc.'s motion, for

summary judgment, pursuant to CPLR Rule 3212, dismissing the complaint and all cross-claims against it, is denied; and it is further

ORDERED that defendant Cozzoli Brothers, LLC's motion for summary judgment, pursuant to CPLR Rule 3212, dismissing the complaint and all cross-claims against it is granted.

This constitutes the decision and order of the court.

ENTER

_________________________

HON. ARTHUR M. SCHACK

J.S.C.