Ballo v P.J.'s Cocktail Lounge & Rest., Inc.
Annotate this Case
Download PDF
Ballo v P.J.'s Cocktail Lounge & Rest., Inc. 2016 NY Slip Op 30985(U) May 26, 2016 Supreme Court, New York County Docket Number: 152263/2012 Judge: Cynthia S. Kern Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 55 ---------------------------------------------------------------------)( TARELL BALLO, Index'No. 152263/2012 Plaintiff, -against- . I ,I DECISION/ORDER P.J.'S COCKTAIL LOUNGE & RESTAURANT, INC., AIMCO 2252-2258 ACP, LLC, ELIZABETH P. GOODWIN, CIRCUMSPECT SECURITY SERVICES, INC., ELITE PLUS SECURITY LLC, ELITE PLUS MMA, ELITE PLUS FITNESS LLC, MARK YEHIA d/b/a CIRCUMSPECT SECURITY and MARK YEHIA d/b/a ELITE PLUS MMA, Defendants. ---------------------------------------------------------------------)( HON. CYNTHIA KERN, J.S.C. .i Recitation, as required by CPLR 2219(a), of the papers considered iri the review of this motion for : ' \ Papers :Numbered Notice of Motion and Affidavits Annexed ................................... . Affidavits in Opposition ........................................................ . Replying Affidavits ..................................................................... . Exhibits .......................................................................... ~ .......... . 1 2 3 4 ,l Plaintiff Tarell Ballo commenced the instant action to recover damages for personal ·~ ·. " injuries he allegedly sustained when he was shot in the foot outside of a b~r located at 2256 7th ~x Avenue, New York, New York (the "premises"). Defendant AIMCO 2252-2258 ACP, LLC . ' t ("AIMCO") now moves for an Order pursuant to CPLR § 3212 granting it summary judgment j~ dismissing plaintiffs complaint. For the reasons set forth below, AIMCO's motion is granted . ., ,, The relevant facts are as follows. On May 1, 2011, plaintiff visit~d P .J.' s Cocktail f / Lounge & Restaurant, Inc. ("P.J.'s") at around 10:00 p.m. or 10:30 p.m. and had a drink. l I Approximately an hour and a half later, plaintiff went outside P .J.' s to sm~ke a cigarette. While 2 of 8 :f [* 2] I he was standing outside on the sidewalk in front of P.J.'s, he heard men yelling from inside P.J.'s. After extinguishing his cigarette, plaintiff turned to reenter P.J.'s when some men came outside. Plaintiff heard shots fired and began running away from P.J.'s when he was shot in his right foot (the "incident"). According to plaintiffs deposition testimony, he was a "couple of steps" away from P.J. 's when he was shot. Specifically, plaintiff testified as follows: Q. So you're outside standing on the sidewalk, right? You put out your cigarette. Did you move your arms or legs in any direction? A. Yes. Q. What did you do? A. I just turned towards my left to enter back into P .J.' s. Q. And you're still on the sidewalk in front of P.J.'s, right? A. Yes. Q. And then what happened? A. I'm by the front. As soon as I turned towards my left, some guys just came out fidgeting in their sweaters, and that's when the shots were fired. Q. Was it one shooter or multiple shooters? A. I believe it was one shooter. Q. Can you describe him? A. No, ma'am. Q. Did you see him shooting? A. Yes. Q. And who was he shooting at? A. I believe some other guy. I don't. .. 2 3 of 8 [* 3] Q. And then what did you do? A. I was in shock of the shooting. As I was - and then I tried to ·iake off. After that panic and a shock, that lasted about five seconds. I tried to take Then I realized as I was running that I was hit. off. i The police report of the incident states that plaintiff stated that he:was standing in front of j I P.J.'s when he heard shots fired. He ran south on 7th Avenue when he felt a gunshot wound to ~ . his right foot and fell down. The shooter was later identified as Jerrar Johnson ("Johnson"), ' .f who entered a guilty plea after being indicted and was sentenced to seve11'; years in prison. When ,, he pleaded guilty, Johnson provided a statement wherein he testified that 1 was in P.J.'s for ,,he ·.f about 45 minutes when an altercation began between two groups of men.11 After the other group ·. left P .J. 's, Johnson's group also left. Someone called a man named Saq~an, who brought a gun :~ :i by cab to P.J.'s. Johnson met Saquan outside P.J.'s and was given the g~n. While the two ,j groups were huddled outside P.J. 's, a man in the other group walked "offithe line." Johnson shot once at the man and walked away. P.J.'s was located at premises owned by AIMCO. There had beeh various violent incidents in P.J.'s before the incident at issue, including an assault and a slashing with a broken ·t wine glass. Before the incident at issue, P.J.'s and AIMCO entered into 1 ~ settlement agreement ,I "r! with the City of New York after the City of New York commenced an act,ion to enjoin P.J.'s " " from operating as a public nuisance. P.J.'s was closed for one year and, hpon reopening, agreed to employ two licensed security guards to protect the premises, to electroAically verify patrons' ' ages, to maintain a video surveillance system to monitor the premises an~'. the surrounding area and to create an employee handbook, among other obligations. P.J.'s an~ AIMCO were } permanently enjoined from ~iolating the New York State Alcoholic Beve~age Control ("ABC") ,, 3 I .1 I 4 of 8 [* 4] ,, Laws, the New York State Penal Laws and Title 7 of the New York Administrative Code. The stipulation of settlement was effective for two years from its execution on April 3, 2009. 'l ·., AIMCO's motion for summary judgment dismissing plaintiffs c6mplaint is granted on ·I ,, the ground that it owed no duty to plaintiff. On a motion for summary Jvdgment, the movant .:1 bears the burden of presenting sufficient evidence to demonstrate the abs1~nce of any material i '! issues of fact. See Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986). Summary judgment 'f should not be granted where there is any doubt as to the existence of a material issue of fact. See Zuckerman v. City ofNew York, 49 N.Y.2d 557, 562 (1980). Once the movant establishes a ' •f primafacie right to judgment as a matter oflaw, the burden shifts to the party opposing the ' motion to "produce evidentiary proof in admissible form sufficient to require a trial of material ,I questions of fact on which he rests his claim." Id. ·t "It is well established that before a defendant may be held liable f9r negligence it must be shown that the defendant owes a duty to the plaintiff." Pulka v. Edelma4, 40 N.Y.2d 781, 782 (1976). A duty to control the actions of third parties arises only where lf' t~ere is a relationship "i between the defendant and the person who causes the harm "such as to re9uire the defendant to jj attempt to control the other's conduct" or a relationship between the defehdant and the plaintiff I I "which requires the defendant to afford protection from certain dangers."l Id. at 783 (listing a <I ,I master-servant relationship as an example of a relationship requiring the defendant to control the ' third party's conduct). ,, A landlord has a duty to exercise reasonable care to maintain his property in a safe I 'I it ' condition, including by taking "minimal precautions to protect those upo~ the premises from the f criminal acts of third parties." Todorovich v. Columbia Univ., 245 A.D.~d 45, 45-46 (151 Dept 4 II II I i 11 I I 5 of 8 [* 5] 1997). However, a landlord generally has no duty to protect persons oufside of the premises i ·' from the criminal acts of third parties. See Pulka, 40 N.Y.2d at 783 (holding that the defendant I ' garage owed no duty to control the conduct of its patron drivers "for the protection of off~r premises pedestrians"); Muniz v. Flohern, Inc., 77 N.Y.2d 869, 870 (holding that the defendants ' J who owned a building owed no duty to the infant plaintiff where a robbet inside the building r shot the plaintiff, who was outside the building, as there was no relations~ip between the defendants and the gunman or between the defendants and the plaintiff); Yames v. Terrace ' 1 Tavern, LLC, 46 Misc.3d 470, 474 (Sup Ct, Orange County 2014) ("Whether plaintiff briefly ~ .i stepped into the Tavern or not, his own statements establish that he was shot not there, but on the ' public street. Such admissions effectively take him out of court. Even assuming, arguendo, ;l ) <! that the common law imposes some broad, general duty upon a bar ownei to control or maintain ., ' the behavior of its patrons within its facility ... such duty would clearly stop_ at the barroom ., ; door"). T ., ., In the present case, AIMCO's motion for summary judgment distAissing plaintiff's i complaint is granted on the ground that it owed no duty to plaintiff as pla!ntiff and Johnson were . '~ ' both outside the premises when plaintiff was shot. There was no relationship between AIMCO and Johnson such as to require AIMCO to attempt to control Johnson's cbnduct as he shot ..' plaintiff after he exited the premises. Further, there was no relationship between AIMCO and ~i plaintiff such as to require AIMCO to afford protection to plaintiff as he was shot outside the ' premises. -~ .·• ' Plaintiff's argument that AIMCO's motion for summary judgment should be denied on ·~; ' the ground that AIMCO affirmatively assumed a duty to provide a reason~bly safe premises 5 6 of 8 [* 6] based on the settlement agreement and its lease with P.J.'s, which gave AIMCO a right of reentry to the premises, is without merit. As an initial matter, the settlement agreement required P.J.'s, not AIMCO, to implement certain security measures in the premi~es. Further, the settlement agreement had expired before the incident. Moreover, the mere fact that AIMCO's lease with P.J.'s gave AIMCO the right to reenter the premises does not ~how that AIMCO assumed a duty to implement security measures so as to regulate the conduct of or to protect persons outside the premises. Cf Flynn v. Niagara Univ., 198 A.D.2d 262, 264 (2nd Dept 1993) (holding that security guards assumed a legal duty to act where they "tobk affirmative actions to halt the snowball fight which eventually led to the plaintiffs injury"). Plaintiffs argument that AIMCO's motion for summary judgment should be denied on the ground that the incident was reasonably foreseeable due to the ongoi~g violence at the premises is also without merit. "Foreseeability should not be confused with duty." Pulka, 40 N.Y.2d at 785. In the absence of a relationship between the defendant and either the person causing the harm or the plaintiff sufficient to require the defendant to ad, the foreseeability of an incident is not enough to impose a duty on the defendant. See id. Plaintiffs argument that AIMCO's motion for summary judgment should be denied on the ground that the statement of Johnson wherein he claims that he nevet brought a gun inside P.J.'s, and thus that the entire incident occurred outside the premises, is inadmissible hearsay is also without merit. Even if Johnson's statement is inadmissible hearsay, plaintiff testified in his deposition that "some guys just came out fidgeting in their sweaters, andlthat's when the shots were fired." Thus, according to plaintiffs testimony, the incident occurred outside the premises. Moreover, plaintiff has failed to cite any case law indicating that, even if Johnson had 6 7 of 8 [* 7] brought the gun inside P.J.'s before leaving and shooting plaintiff, AIMCO would have had a duty to regulate the conduct of Johnson, as by confiscating his gun or calling the police, or to protect plaintiff, who was outside the premises. I Finally, plaintiff's argument that it is irrelevant that the incident occurred outside the entrance to P.J .' s rather than inside P .J.' s is without merit. As discussed above and contrary to plaintiffs contention, whether the incident occurred inside or outside the:premises is relevant to the determination of whether AIMCO owed a duty to plaintiff. Accordingly, AIMCO's motion for summary judgment dismissing plaintiffs complaint as against it is granted. This constitutes the decision and order of the court. Enter: -----~-°J;~--- J.S.C. CYNTHIA S. KERN J.S.C 7 8 of 8
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
