Fisher v DiPietro

[*1] Fisher v DiPietro 2007 NY Slip Op 51385(U) [16 Misc 3d 1111(A)] Decided on July 16, 2007 Supreme Court, Kings County Knipel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2007
Supreme Court, Kings County

Michael Fisher as Administrator of the Estate of Mark Fisher, and Michael Fisher and Nancy Fisher, as individuals, Plaintiffs,

against

Angel DiPietro, Defendant.



30319/06



Leeds Morelli & Brown, P.C.

One Old Country Road

Carle Place, NY 11514

(516) 873-9550

Attorneys for plaintiff

Godosky & Gentile, P.C.

61 Broadway

New York, NY 10006

(212) 742-9700

Attorneys for defendant.

Lawrence Knipel, J.

By order of this court dated February 7, 2007, defendant's motion to dismiss was granted upon plaintiffs' default in appearing for oral argument. In this motion, plaintiffs move for "leave to reargue and/or renew", but which is, in effect, for leave to vacate their default, restore the case, and to deny the motion to dismiss on the merits.

Plaintiffs' attorney affirms that although papers were submitted opposing defendant's motion to dismiss, counsel forgot to appear for oral argument. Under the circumstances here, where there is no evidence the default was wilful, the delay was minimal, plaintiffs moved promptly to vacate their default and restore the motion, an affidavit of merit by one with personal knowledge (plaintiffs' decedent) is impossible, and in light of the public policy in favor of deciding matters on their merits, that branch of the motion which seeks vacatur of plaintiffs' default is granted.

This case arises out of the tragic murder in 2003 of plaintiffs' decedent, Mark Fisher, in Brooklyn, after traveling with friends from New Jersey to Manhattan for a "night on the town."

The instant complaint alleges that on October 11, 2003, Mark Fisher, plaintiffs' decedent, and some friends went to a Manhattan bar called Bar Harbor. There, he met a friend from Fairfield University, defendant Angel DiPietro, and some of her friends. Defendant introduced Fisher to her friend, Meredith Denihan. Defendant and another friend, Albert Cleary, went to another bar, Tin Lizzie's, but were not allowed in. Soon Denihan and Fisher met them outside that bar. Plaintiff contends that Cleary and his friend, John Giuca, "had a clear history of violence" and that Giuca was a gang member who allegedly told Cleary that "the prerequisite to becoming a Ghetto Mafia member was to murder someone." [*2]

Plaintiffs further allege that Fisher was separated from his friends and was intoxicated. Defendant offered Fisher her cell phone to contact his friends, but when attempts were unsuccessful, she "offered to assist Fisher find a way home or a place to stay the night." Subsequently, defendant "decided to take Fisher with her and her friends" to Giuca's home. Upon information and belief, it is alleged that "some of the individuals" including Giuca and a fellow gang member, Russo, escorted Fisher to an ATM and forced him at gunpoint to withdraw money from his account.

Defendant then left Giuca's home and went to the home of Cleary's mother down the street leaving "the intoxicated and disoriented" Fisher behind. Upon information and belief, it is alleged that Fisher was again taken to an ATM, and, when he withdrew only $20, some "individuals" became enraged and struck Fisher and shot him five times. In September 2005, Giuca and Russo were indicted for homicide.

The complaint alleges that defendant's actions were careless and negligent, and that "one who volunteers to assist another owes to such person the legal duty to use reasonable care in rendering the assistance she has undertaken to give." Defendant had, it is asserted, a duty to use reasonable care not to expose Fisher to greater danger, and leaving him in a home with violent individuals breached that duty. Had defendant not breached that duty, Fisher would not have found himself in Brooklyn, and it was reasonably foreseeable that leaving Fisher with known gang members could result in injury.

In her motion to dismiss, defendant argues that even if every allegation is correct, no valid cause of action is stated. An individual has no legal duty to safely find lodging for someone he or she happened to meet during a night on the town; providing a cell phone and allowing defendant to accompany her to Brooklyn are not acts that rise to a level of attempted rescue that result in a legal duty to perform the rescue reasonably; and the risk of alleged gang members - to which defendant as well as Fisher were exposed - was not foreseeable.

Annexed to defendant's motion papers were copies of testimony at the criminal trial. At that trial, defendant testified that she and Cleary could not get into the second bar, Tin Lizzie's, since they were under 21, and they were waiting outside when her friend, Meredith, called and asked where they were. Meredith and Fisher then met them outside the second bar. Defendant was concerned that Fisher was nor with his friends from New Jersey. It was about 3:30 AM, and defendant and her friends had missed the last train to Garden City. Defendant gave Fisher her cell phone because Fisher did not have his own on him. He could not get in touch with his friends. Defendant asked a cab driver to take him home, but he did not know "the address of the house" and did not have that much money, "so he asked if it would be okay if he could spend the night where we were staying." Defendant, Meredith, Mark Fisher, Al Cleary and John Giuca took a cab to Brooklyn, to Giuca's house. They went to one room, and Giuca asked them to move to another room. At the second room, defendant testified she "was exhausted" and "fell asleep" on the couch. She did not see anyone else in the house. At about 6 AM, Cleary woke her up, told her it was time to go to his house, located a few blocks away, and they left through the front door. She did not see Fisher before she left. She last saw him on a couch in the room they were in. Later that morning when Cleary was talking with Guica, she asked Cleary to ask where Fisher was, if he was with Meredith. She was told Guica had given Fisher directions to take a train and he took a train home.In reply, plaintiffs' attorney asserts that defendant's actions [*3]in undertaking to rescue plaintiffs' decedent establish her duty to decedent, and that duty was breached by placing decedent in further danger. According to plaintiffs, whether defendant's acts constituted an attempted rescue is a question of fact for the jury and cannot be determined by this court on this motion. Moreover, the harm suffered by decedent was foreseeable, since "most or all of those to whom Defendant exposed Decedent were gang-affiliated and/or had violent and/or criminal histories, harm to Decedent was foreseeable."

"The 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" (Parvi v City of Kingston, 41 NY2d 553, 559; Poole v Susquehanna Motel Corp., 280 AD2d 764; Walsh v Town of Cheektowaga, 237 AD2d 947). "[T]his duty cannot be fulfilled by placing the helpless person in a position of peril equal to that from which he was rescued" (Parvi v City of Kingston, supra at 559). These cases are premised on the rule stated in Restatement (Second) of Torts § 324, referred to as the Good Samaritan rule, which provides that "One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused by him by (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor's charge, or (b) the actor's discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him."

A trial court must first determine as a matter of law whether a duty existed before a determination is made regarding whether the duty was breached (see Tagle v Jakob, 97 NY2d 165 [it is for the court to determine whether any duty exists, taking into consideration the reasonable expectations for the parties and society generally]; Di Ponzio v Riordan, 89 NY2d 578, 583 [The existence and scope of an alleged tortfeasor's duty is, in the first instance, a legal question for determination by the court]; Pulka v Edelman, 40 NY2d 781, 782 [It is well established that before a defendant may be held liable for negligence it must be shown that the defendant owes a duty to plaintiff; in the absence of duty, there is no breach and without breach there is no liability]; Filiberto v Herk's Tavern, 37 AD3d1007). "In assessing the scope of a defendant's duty, the court looks at whether the parties' relationship is such as to give rise to a reasonable duty of care, whether the injured person fell within the zone of foreseeable harm and whether the accident resulted from a reasonably foreseeable risk" (Filiberto v Herk's Tavern, supra at [Bar owner's offer to carpool to a diner and then to return decedent to his car in the tavern parking lot after the meal "was not a voluntary undertaking of a duty of care toward him" and, without a duty, the negligence cause of action must fail]; see Di Ponzio v Riordan, supra, 89 NY2d 578, 583[The threshold issue is whether defendant had a legally cognizable duty to prevent the accident in which plaintiff was injured]). Conduct is considered negligent when it tends to subject another to an unreasonable risk of harm arising from one or more particular foreseeable hazards; however, when the harm was caused by an occurrence that was not part of the risk or recognized hazard involved in the actor's conduct, the actor is not liable (Di Ponzio v Riordan, supra, 89 NY2d 578, 584; Restatement [Second], of Torts, § 281]).

In resolving a CPLR 3211(a)(7) motion to dismiss for failure to state a cause of action, a court must afford the pleadings a liberal construction, take the allegations fo the complaint as true and provide plaintiff the benefit of every possible inference (see Team Marketing USA Corp. v Power Pact, LLC, ___ AD3d ___, 2007 WL 1628420; Morales v Copy Right, 28 AD3d 440; [*4]Cayuga Partners v 150 Grand, 305 AD2d 527 [The court must determine whether the alleged facts fit any cognizable legal theory]). Where evidentiary material is submitted on a motion to dismiss, it may be considered in assessing the viability of a complaint, and the complaint may be dismissed if defendant demonstrates that a material fact alleged by plaintiff is not a fact at all and no significant dispute exists regarding it (see Guggenheimer v Ginzburg, 43 NY2d 268, 275). Similarly, a complaint may be dismissed based on documentary evidence if the factual allegations are definitively contradicted by the evidence or a defense is conclusively established (see Beal Savings Bank v Sommer, 8 NY3d 318, 324; Held v Kaufman, 91 NY2d 425, 430-431[It is settled law that a CPLR 3211 dismissal may be granted where documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law]; Yew Prospect v Szulman, 305 AD2d 588).

Plaintiffs here attempt to hold defendant subject to liability for "taking charge" of decedent, allegedly one who is helpless to aid or protect himself, and then failing to exercise reasonable care to secure decedent's safety while within her charge, or from discontinuing her aid or protection leaving decedent in a worse position than when she "took charge" of him. Plaintiffs readily concede that the alleged duty arose not from the parties' relationship with each other, but from defendants' acts. Since, plaintiffs' attorney argues, the complaint alleges defendant volunteered to rescue decedent, and that a duty arose and that defendant breached that duty, the motion to dismiss must be denied. But the record here is not a blank slate whereby any assertion of the ultimate facts allows plaintiffs to survive a motion to dismiss. The record includes portions of the transcript at the criminal trial. Defendant's acts have been established in the criminal case, so merely alleging that a duty arose and that a duty was broken does not suffice. Documentary evidence was submitted which depicts what those acts are and the court can then determine whether they give rise to the duty asserted.

Upon an examination of the evidence in this record, the following facts are clear: Plaintiffs' decedent and defendant were acquaintances from college. They both came to the Manhattan bar from different locations with their own group of friends. Defendant's sole involvement with plaintiffs' decedent was to let him use her cell phone to contact his friends, to try to get him a cab ride to New Jersey, and to allow him to accompany her and her friends back to Brooklyn. Upon reaching Guica's house in Brooklyn defendant fell asleep on the couch. The last time she saw plaintiffs' decedent he was on a couch in the room with the others.

Applying these facts here, it simply cannot be said that defendant assumed a voluntary duty to "take charge" of plaintiffs' decedent, even assuming that he was helpless to aid or protect himself. Not one of defendant's acts comes close to demonstrating that she undertook to give him aid or protection or that she otherwise "took charge" of him. She let him use her cell phone; she tried to get him a cab to New Jersey; and she allowed him to accompany her and her friends back to Brooklyn where she promptly fell asleep. She did not offer aid or protection, she was not going to her home, and she did not offer to take him to his home. As a matter of law, no duty arose from defendants' acts to make her subject to liability.

Assuming for the sake of argument that plaintiffs have adequately demonstrated that defendants' acts constituted a duty to decedent, the complaint would still be subject to dismissal. "When a duty exists, nonliability in a particular case may be justified on the basis that an injury is not foreseeable" (Pulka v Edelman, supra, 40 NY2d 781, 786). Plaintiffs claim that defendant's [*5]purported duty was breached because defendant knew Cleary and Guica were violent individuals and defendant therefore delivered decedent to a dangerous place. However, a careful review of the pleadings indicates that plaintiffs do not allege, much less substantiate, that defendant knew or should have known of Cleary and Guica's alleged criminally violent nature and gang membership. Thus, even if defendant had a duty to decedent, it cannot be said that being attacked and murdered was a reasonably foreseeable risk of accompanying defendant and her group to Brooklyn (see Di Ponzio v Riordan, supra, 89 NY2d, 578, 583; Filiberto v Herk's Tavern, supra, 37 AD3d 1007).

Accordingly, the matter is resolved as follows: plaintiffs' motion to vacate their default and restore the motion to dismiss is granted. On the merits, defendant's motion to dismiss is granted, and the complaint against defendant is dismissed.

The foregoing constitutes the decision and order of this court.

E N T E R,

J. S. C.