James v Pathmark, Inc.
Annotate this CaseDecided on December 11, 2007
Supreme Court, Kings County
Davey James, Plaintiff,
against
Pathmark, Inc., Atlantic Center Fort Greene, Inc., Atlantic Center Holdings, Ltd., Atlantic Center Fort Greene Associates, L.P., Comstat Security, Inc., and Jason Jeffrey, Defendants.
13214/04
Donald Scott Kurtz, J.
Copstat Securities Inc., s/h/a Comstat Security Inc., (hereinafter "Copstat") moves, pursuant to CPLR §3212, for an order granting it summary judgment, dismissing plaintiff's complaint against it and co-defendants' cross-claims. Defendants Atlantic Center Fort Greene, Inc. and Atlantic Center Holdings, Ltd., (hereinafter "Atlantic Center") cross-move, pursuant to CPLR §3212, for an order granting them summary judgment, dismissing plaintiff's complaint against them.
This action was commenced by filing of a summons and complaint on April 26, 2004. Issue was joined by service of a verified answer on behalf of Copstat on June 15, 2004; Atlantic Center on or about May 25, 2004; and defendant Pathmark, Inc. (hereinafter "Pathmark") on or [*2]about July 1, 2004. A preliminary conference was held on March 23, 2005 and a compliance conference was held on September 22, 2005. Plaintiff failed to timely file his note of issue and the case was marked off calendar on December 30, 2005. Plaintiff made a motion to restore this action to the calendar and said motion was granted on July 6, 2006. Plaintiff filed his note of issue on October 3, 2006. Copstat timely moved to strike the note of issue from the trial calendar due to outstanding discovery. On November 21, 2006, the motion to strike was denied by Justice Ruditsky, a discovery schedule was set out, and defendants' time to file summary judgment motions was extended to March 19, 2007. On January 18, 2007, all parties appeared for another compliance conference with Justice Ruditsky and as a result, he issued a further discovery order which further extended defendants' time to move for summary judgment to May 30, 2007. On April 17, 2007, a further compliance conference was held and Justice Ruditsky issued another discovery order which once more extended defendants' time to move for summary judgment to July 17, 2007. On July 12, 2007, Copstat made the instant motion for summary judgment, arguing that plaintiff is neither a party nor a third-party beneficiary of its contract with Atlantic Center; that Copstat's acts and/or omissions were not the proximate cause of plaintiff's injuries; that there is no factual support for the claims made against Copstat; and that the cross-claims against it are conclusory. On September 7, 2007, Atlantic Center cross-moved for summary judgment.
The alleged facts are as follows: on September 19, 2003 at approximately 10:20 p.m., plaintiff was working as a gypsy cabdriver. While plaintiff was waiting for his turn in line to get a fare from outside the Pathmark store located in the Atlantic Center Mall (hereinafter "the mall"), another cabdriver known as "Big" attempted to cut him off and a heated argument ensued inside the Pathmark cart corral. The Pathmark cart corral has been described as the area around the exit door surrounded by bars that prevents customers from removing shopping carts from the store. While the cabdrivers were arguing, defendant Jason Jeffrey (hereinafter "Jeffrey"), who was employed as a security officer by Pathmark, witnessed the argument. Jeffrey testified that he had witnessed cabdrivers fighting in front of the Pathmark store in the past and would have to intervene to break up the fights. Plaintiff alleges that this fight or argument ended on its own. However, Jeffrey testified that he had to physically get between the two cabdrivers to end the altercation. "Big" then walked away from the altercation while plaintiff allegedly continued to yell at him. Thereafter, plaintiff and Jeffrey began to argue and plaintiff alleges that Jeffrey spit on him; that plaintiff became angry and pushed Jeffrey; and that Jeffrey stabbed him in his right thigh. Jeffrey alleges that he yelled an obscenity at plaintiff and in response plaintiff tried to punch him. The fight escalated and both men began punching, kicking and wrestling with each other. The two men were eventually separated and Jeffrey entered the Pathmark store vestibule where he noticed his face and left forearm were bleeding. He allegedly ran back outside to punch plaintiff but instead he jumped in the air and kicked plaintiff. Both plaintiff and Jeffrey were arrested as a result of the incident.
First New York Partners (hereinafter "First New York") is the management agent for Atlantic Center. On or about June 15, 2000, Copstat was contracted by First New York to provide security for the "common areas" of the mall. Copstat's guards assigned to the mall were [*3]regularly unarmed. Pathmark was a tenant of the mall and retained its own security guards. A uniformed in-house security team known as Red Coatswere also assigned by Atlantic Center to the common areas of the mall. In his complaint, plaintiff alleges that Jeffrey stabbed him causing him serious injury; that defendants did not employ sufficient security measures to prevent the attack; that Jeffrey's conduct was in furtherance of Pathmark's interest and in the course of his employment; that Pathmark owed plaintiff a duty of reasonable care which was breached by recklessly or negligently hiring Jeffrey causing a foreseeable injury to plaintiff; that Atlantic Center owed a duty of reasonable care to plaintiff which it breached by not taking reasonable measures to ensure that the occupants of its mall employed competent security personnel; and that Pathmark, Copstat and Atlantic Center each owed a duty of reasonable care to plaintiff which they breached by not employing appropriate security measures, such as working security cameras, to deter foreseeable attacks.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). In light of such a showing, if the party opposing the motion comes forward with evidence of issues of fact requiring a trial, the motion will be denied. Rebecchi v. Whitmore, 172 AD2d 600 (2d Dept 1991).
"A duty of reasonable care owed by a tortfeasor to an injured party is elemental to any recovery in negligence (citations omitted)." Palka v. Servicemaster Management Services Corp., 83 NY2d 579, 584-585 (1994). See Eiseman v. State, 70 NY2d 175, 187 (1987); Palsgraf v. Long Island Railroad Co., 248 NY 339 (1928). "In the absence of duty, there is no breach and without a breach there is no liability (citation omitted)." Pulka v. Edelman, 40 NY2d 781 rearg denied 41 NY2d 901 (1977). The four elements of negligence are that a duty of care was owed by the defendant to the plaintiff, that the defendant breached that duty, that the defendant's breach was a proximate cause of the plaintiff's injuries and that plaintiff was damaged. See Van Nostrand v. Froehlich, 44 AD3d 54, 68 (2d Dept 2007); Luina v. Katharine Gibbs School New York, Inc., 37 AD3d 555, 556 (2d Dept 2007); Talbot v. New York Institute of Technology, 225 AD2d 611, 612 (2d Dept 1996). The question of whether "one party owes a duty of care to another is entirely one of law to be determined by the courts (citation omitted)". Donohue v. Copiague Union Free School District, 64 AD2d 29, 33 affd 47 NY2d 440 (1979).
Copstat argues that plaintiff may not recover for injuries sustained as a result of an alleged breach of duty to perform services under the contract between Copstat and First New York because plaintiff was neither a party nor an intended third-party beneficiary of the contract. In support of its position, Copstat submits the contract for security guard services wherein Copstat agreed to provide unarmed uniformed guards. It is undisputed that Copstat was to provide guards to patrol the common areas of the mall. However, the parties disagree as to whether the incident occurred in the Pathmark cart corral and whether the cart corral is part of the common areas of the mall. Copstat submits the examination before trial ("hereinafter "EBT") of its manager wherein he states that Copstat was contracted to "provide a security presence by [*4]wearing a uniform and to observe and report anything that involves criminal activity or dangerous condition." Copstat argues that this limited undertaking did not give rise to a duty of care to plaintiff.
Atlantic Center maintains that Copstat was retained to perform all duties and responsibilities on its behalf with respect to providing security in the common areas of the mall. Atlantic Center argues that it provided minimal security to the premises and discharged its duty by retaining the services of Copstat. Moreover, it contends that the assault on plaintiff by a Pathmark security guard was not a foreseeable event.
Pathmark argues that it was an intended third-party beneficiary of the contract between Copstat and First New York because Copstat was contracted to provide security services to the common areas of the mall, including the cart corral. Pathmark submits the EBT testimony of Jeffrey wherein he states that Copstat officers would be back and forth in front of the Pathmark store and that Copstat's security personnel were involved in the past with handling situations involving cabdrivers at that location. Pathmark contends that even if this Court does not find that Copstat owed a duty to Pathmark, it should find that Copstat created a special duty of care by regular and consistent intervention in handling the cabdrivers outside the Pathmark store entrance.
Liability may not be imposed on a defendant security guard company where a plaintiff is not a third-party beneficiary of the contract between the defendant managing agent and defendant security guard company. Rudel v. National Jewelry Exchange Co., 213 AD2d 301 (1st Dept 1995). Moreover, "before an injured party may recover as a third-party beneficiary for failure to perform a duty imposed by contract, it must clearly appear from the provisions of the contract that the parties thereto intended to confer a direct benefit on the alleged third-party beneficiary to protect him from physical injury (citations omitted)." Bernal v. Pinkerton's, Inc., 52 AD2d 760 affd 41 NY2d 938 (1977). See Port Chester Electrical Construction Co. v. Atlas, 40 NY2d 652, 655 (1976) (wherein the court held that an intent to benefit the third party must be shown and absent such intent the third party is merely an incidental beneficiary with no right to enforce that particular contract.); Burns Jackson Miller Summit & Spitzer v. Lindner, 59 NY2d 314, 336 (1983); State of California Public Employees' Retirement System v. Shearman & Sterling, 95 NY2d 427, 434-435 (2000); Strauss v. Belle Realty Co., 98 AD2d 424, 427 affd 65 NY2d 399 (1985).
Where there is no original duty owed to a plaintiff, a person may voluntarily assume a duty. See Nallan v. Helmsley-Spear, Inc., 50 NY2d 507, 521 (1980); Gordon v. Muchnick, 180 AD2d 715 (2d Dept 1992); Cohen v. Heritage Motor Tours, Inc., 205 AD2d 105, 107 (2d Dept 1994). Once a defendant undertakes to perform an act for the plaintiff's benefit, the act must be performed with due care for the safety of the plaintiff. See Id.; Wolf v. City of New York, 39 NY2d 568, 573 (1976); Parvi v. City of Kingston, 41 NY2d 553, 559 (1977); Heard v. City of New York, 82 NY2d 66, 72 rearg denied 82 NY2d 889 (1993). This duty requires evidence of defendant's voluntary affirmative undertaking, that the defendant's affirmative act adversely [*5]affected the plaintiff, that is, defendant's act placed plaintiff in a worse position than plaintiff would have been had defendant failed to act at all and that defendant failed to act reasonably. See Nallan v. Helmsley-Spear, Inc., 50 NY2d at 521, supra; Hynes v. Town of Cornwall, 234 AD2d 423, 424 (2d Dept 1996); Gordon v. Muchnick, 180 AD2d at 715, supra. Once the court finds that a duty exists, "the question of whether the defendant breached that duty is generally a question of fact for the jury." Gordon v. Muchnick, 180 AD2d at 715, supra. See Florence v. Goldberg, 44 NY2d 189, 197 (1978).
The Court finds that Copstat was hired to provide security guards to patrol the common areas of the mall and report any criminal activity and/or unsafe conditions to First New York's dispatcher located at the mall. It was not retained to protect individuals from personal injuries. It cannot be said as a matter of law that it was the intention of Copstat and First New York under this contract to provide for the protection of gypsy cabdrivers, specifically plaintiff. Moreover, Copstat did not assume a special duty to protect Pathmark. Although Copstat guards may have been stationed outside the Pathmark store entrance on other occasions, there is no testimony that they were to be permanently stationed there. Jeffrey testified that Copstat security guards were involved on other occasions in handling situations involving cabdrivers at that location. Assuming this to be true, Jeffrey has no personal knowledge as to whether Copstat guards were to be permanently stationed there. In fact, only two Copstat security guards were contracted to provide security for the common areas of the entire mall. Moreover, it is undisputed that no Copstat guard was present at the time and location of the alleged incident. Additionally, there is no evidence that Copstat guards' acts adversely affected plaintiff or that Copstat guards failed to act reasonably. The Court finds as a matter of law that plaintiff was not a third-party beneficiary of the contract between Copstat and First New York and that no special duty existed and, therefore, Copstat did not owe a duty of care to plaintiff. Accordingly, plaintiff's complaint against Copstat must be dismissed.
Copstat also moves to dismiss all cross-claims asserted against it. Upon review of Atlantic Center's answer, the Court finds that defendant Atlantic Center failed to assert any cross-claims against Copstat. Pathmark asserted cross-claims against Copstat alleging that if Pathmark is found liable, it will then be damaged by co-defendants Atlantic Center and Copstat in whole or in part and that they will be liable to Pathmark in common law contribution, common law indemnification and contractual indemnification. Copstat alleges that these cross-claims are conclusory and fail to set forth allegations which, if proven, would establish Pathmark's right to indemnification.
In opposition to Copstat's motion to dismiss all cross-claims against it, Pathmark argues that it was a third-party beneficiary of the contract between First New York and Copstat because it conferred a direct benefit upon Pathmark by dealing with problems involving gypsy cabdrivers. Pathmark contends that it detrimentally relied upon Copstat's services and that at the time and place of this incident Copstat was "not in the area where he/she was at most times, and therefore unavailable to Pathmark." Accordingly, Pathmark argues it was placed in a position to have to deal directly with plaintiff. [*6]
A cause of action based in contribution distributes the loss among tort-feasors by "requiring joint tort-feasors to pay a proportionate share of the loss to one who has discharged their joint liability, while in indemnity the party held legally liable shifts the entire loss to another (citations omitted)." Rosado v. Proctor & Schwartz, Inc., 66 NY2d 21, 23-24 (1985). "The right to indemnity, as distinguished from contribution, is not dependent upon the legislative will. It springs from a contract, express or implied, and full, not partial, reimbursement is sought." McDermott v. City of New York 50 NY2d 211, 216 citing Mcfall v. Compagnie Maritime Belge, 304 NY 314, 328 (1952). The key element of a common law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is "a separate duty owed the indemnitee by the indemnitor." Raquet v. Braun, 90 NY2d 177, 183 (1997) citing Mas v. Two Bridges Associates by National Kinney Corp., 75 NY2d 680, 690 (1990). See Plemmenou v. Arvanitakis, 39 AD3d 612, 614 (2d Dept 2007).
In contribution, "the tort-feasors responsible for plaintiff's loss share liability for it." Mas v. Two Bridges Associates by National Kinney Corp., 75 NY2d at 689, supra. Only "ratable or proportional reimbursement is sought in an action for contribution." Mcfall v. Compagnie Maritime Belge, 304 NY at 327, supra. Since this Court has already found that Copstat did not owe plaintiff a duty of care and is not responsible to plaintiff for his loss, the principles of common law contribution are inapplicable. Moreover, Pathmark did not have a contract with Copstat, and therefore, contractual indemnification is inapplicable as well. Pathmark's cross-claim based upon common law indemnification must be denied as well. Copstat did not owe Pathmark a duty to intervene in disputes involving gypsy cabdrivers. Moreover, any such duty, if it did exist, would certainly not be extended to indemnify Pathmark for injuries its employee is alleged to have caused. Accordingly, all cross-claims by Pathmark against Copstat must be dismissed.
The Court now turns to Atlantic Center's cross-motion for summary judgment dismissing plaintiff's complaint against it. Plaintiff filed his note of issue on October 3, 2006. As previously outlined, all defendants' time to move for summary judgment was extended three times by orders of Justice Ruditsky. The last order extended defendants' time to move to July 17, 2007. Atlantic Center's cross-motion comes nearly two months after that deadline. Atlantic Center cites several cases in support of the proposition that a late cross-motion may be made as long as the relief sought is nearly identical to the original summary judgment motion. It also contends that the Court can search the record and grant it summary judgment without the necessity of a cross-motion, limited to those causes of action or issues that are the subject of the timely summary judgment motion. However, in the cases cited by Atlantic Center, the cross-motions for summary judgment were made merely days after the statutory time frame. Here, Justice Ruditsky issued three orders specifically directing that all dispositive motions be filed by a certain date. Moreover, his orders extended defendants' time to move for summary judgment over six months beyond the statutory sixty days. Atlantic Center's failure to comply with Justice [*7]Ruditsky's order and the fact that the relief sought by Atlantic Center is clearly not identical to Copstat's motions necessitates this Court's denial of Atlantic Center's cross-motion as untimely.
In view of the foregoing, defendant Copstat's motion for summary judgment dismissing plaintiff's complaint against it and dismissing all cross-claims asserted against it is granted in its entirety. Atlantic Center's cross-motion for summary judgment dismissing plaintiff's complaint against it is denied as untimely.
The foregoing shall constitute the Decision and Order of the Court.
DONALD SCOTT KURTZ
Justice, Supreme Court
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.
