Calderazzo v Houston Essex Realty Corp.

[*1] Calderazzo v Houston Essex Realty Corp. 2007 NY Slip Op 52087(U) [17 Misc 3d 1120(A)] Decided on October 28, 2007 Supreme Court, New York County Stallman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 28, 2007
Supreme Court, New York County

Edward Calderazzo, Plaintiff,

against

Houston Essex Realty Corp., et al., Defendants.



116236/2004



For Plaintiff:

Norman R. Colon, Esq.

209-45 26th Avenue, Suite 1B

Bay Terrace, New York 11360

(718) 279-6086

For Defendants Houston Essex Realty and Tony Lai:

Debra J. Millman, Esq.

302 Fifth Avenue, 8th Floor

New York, New York 10001

(212) 407-4700

For Defendants R&S Security and Robert Amos:

Harms, Mahon, Finneran, Gialleonardo & Whelan, Esqs.

One Whitehall Street

New York, New York 10004

(212) 248-9100

Michael D. Stallman, J.

Plaintiff alleges that, on November 18, 2001, he was assaulted outside a nightclub known as Chaos, located at 225 E. Houston Street. Defendant Houston Essex Realty owns the premises, which is leased to defendant Club Old Banque Corp., which operates the nightclub. Plaintiff testified at his deposition that, while he and his brother were waiting to enter the nightclub, an altercation occurred on the sidewalk, several security personnel became involved, and he was trampled in the melee. Millman Affirm., Ex C [Calderazzo EBT], at 34-35, 93-101).

These defendants establish a prima facie entitlement to summary judgment. If nothing had transpired within the club to have caused the altercation, then neither the landlord nor the club owner would have owed a duty under the circumstances to protect plaintiff from the sudden assault that took place outside the premises. Murphy v Chaos, 26 AD3d 231 (1st Dept 2006); Woolard v New Mohegan Diner, 258 AD2d 578, 579 (2d Dept 1999). As an out-of-possession landlord with limited rights of entry (see Millman Affirm., Ex F), Houston Essex Realty owes no duty of care to prevent an assault outside the premises. See Regina v Broadway-Bronx Motel Co. , 23 AD3d 255, 256 (1st Dept 2005 [out of possession landlord with limited right of entry not liable for assault occurring on premises]). Under either scenario, Houston Essex Realty Corp. owes no duty of care to plaintiff. The security personnel were not employed by Houston Essex Realty Corp. In addition, there is no basis to hold Tony Lai, a principal of Houston Essex Realty Corp., personally liable for plaintiff's injuries, even if the landlord owed plaintiff a duty of care here.

Plaintiff fails to raise a triable issue of fact warranting denial of summary judgment. Plaintiff's contention that Tony Lai is the Tony Theodore who executed the lease on behalf of Club Old Banque Corp. is based entirely on speculation. Plaintiff's reliance on Section 7-210 of the Administrative Code of the City of New York is misplaced, as plaintiff himself testified that his injuries occurred during a melee in front of the nightclub, not due to an allegedly hazardous condition of the sidewalk. Whether Houston Essex Realty did not procure any insurance that the law may require is irrelevant.

Given all the above, the Court need not reach the issue of whether the evidence indicates that plaintiff's own brother started the melee.

/s

Dated: 10/28/07

New York, New YorkJ.S.C.