Ware v P.J.'S Cocktail Lounge & Rest., Inc.

[*1] Ware v P.J.'S Cocktail Lounge & Rest., Inc. 2015 NY Slip Op 51285(U) Decided on August 31, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 31, 2015
Supreme Court, Kings County

Keith Ware, Plaintiff,

against

P.J.'s Cocktail Lounge & Restaurant, Inc. and Elizabeth Goodwin, Defendants.



8519/12



For Plaintiff:

Kevin A. O'Connell, Esq.

SCHMELKIN ASSOCIATES, PC

NY NY For Defendant:

Kimberly C. Sheehan, Esq.

THOMAS M. BONA, PC

White Plains NY
Arthur M. Schack, J.

Plaintiff KEITH WARE (WARE) was shot and wounded by an unknown assailant at about 3:00 a.m., on February 16, 2012, at the premises of defendant/third-party plaintiff P.J.'s COCKTAIL LOUNGE & RESTAURANT, INC., 2256 Adam Clayton Powell Jr. Boulevard, New York, New York. The cocktail lounge was owned by defendant/third-party plaintiff ELIZABETH GOODWIN (both defendants/third-party plaintiffs referred to collectively as "P.J.'s"). Plaintiff WARE seeks damages for his injuries from defendants/third-party plaintiffs P.J.'s because of P.J.'s negligent supervision of the premises.

Defendants/third-party plaintiffs P.J.'s moves for summary judgment and dismissal of plaintiff WARE's complaint, pursuant to CPLR § 3212, alleging that: defendants/third-party plaintiffs P.J.'s did not have a duty to protect plaintiff WARE from a sudden and unforeseen assault at P.J.'s premises; defendants/third-party plaintiffs P.J.'s did not negligently hire its independent contractor security company; and, defendants/third-party plaintiffs P.J.'s are not responsible for any negligence by its independent security contractor, because P.J.'s did not control or supervise or have authority to control or supervise the means and methods of its independent security contractor. Plaintiff WARE opposes, alleging that defendants/third-party plaintffs P.J.'s was negligent, careless and reckless in the ownership, operation, maintenance, supervision and control of their premises by allowing an assailant to gain entry in light of prior criminal incidents at the premises. For the reasons to follow, the instant motion is denied.

Background

Plaintiff WARE, 28 years old at the time of the shooting, resides in Harlem near P.J.'s. He testified in his deposition [exhibit D of motion] that the day of the incident was the first time he was ever at P.J.'s. He went there with a neighborhood friend, Michael Scott, for a birthday party. They arrived at P.J.'s early on the morning of February 16, 2012, at about 2:00 a.m. Plaintiff WARE and Mr. Scott, similar to other P.J.'s patrons, were met by two male security guards at the door. They were asked to show identification and then patted down for weapons before being admitted. Plaintiff WARE, in his affidavit attached to his attorney's affirmation in opposition to the instant motion [exhibit 2], describes the incident as follows:

4. We got there at around 2 a.m. and after about 15 minutes I ordered a drink. As I retrieved the glass from the bar counter, an individual jumped up off his seat, pushed me and started screaming in a very loud voice. He was shouting "what the fuck" and he was [*2]speaking erratically. He pushed me so hard that the glass fell out of my hand and smashed onto the floor, I just moved back from the bar as I was with friends and acquaintances that I had not see for many years.5. About 45 minutes later I saw the same individual again. However, when I first saw him he was wearing a blazer and conservative clothes. Now when I saw him he was wearing a sweatshirt hoodie and he has his hands in his pockets. I was talking to a friend of mine at the time and this other individual kind of nodded to me and made a motionthat he wanted to talk. I moved around my friend and the individual was leaning down and I said to him "Is everything ok, are we cool?" He was talking very low. And then he said "yeah." I kept saying are we cool because the music was loud and suddenly I was shot in the stomach. The gun was concealed in the pocket of his hoodie and I never saw his

hands.

6. After he shot me he immediately ran towards the exit.7. The bar is a big area and there were probably 60 to 70 people in the premises during the time that I was there. Several of my friends were beside me and they saw the shooting. I did nothing to provoke this individual and I never saw him before outside P.J.'s Cocktail Lounge. There were no security guards looking around in the bar area among the 60 or 70 patrons . . .8. When I went in with my friend, Michael Scott, the security pat down was brief and cursory and it was as if they were just going through the motions. It was not a thorough search that would have detected a metal object on me. No such metal detecting wand was used on me.

Plaintiff WARE was shot in the abdomen and the bullet ricocheted into his pelvis and left hip. He sustained a comminuted fracture of the ileum and ancillary columns of the acetabulum, requiring two surgeries during two separate hospital admissions. The first surgery was an exploratory laparoscopy and the second surgery involved the removal of the bullet from the left flank area of the abdominal wall, corresponding to the wound track created by the bullet's path through plaintiff WARE's body.

The shooter fled the scene and was never apprehended.

Defendants/third-party plaintiffs P.J.'s alleges, in its affirmation in support of the instant motion, that there were no prior incidents in which an armed person went into P.J.'s without detection by the security firm hired by P.J.'s. P.J.'s claims that on January 15, 2010 a patron has a verbal altercation and left the premises and then returned with a gun in his hand, which was observed by security when the patron was outside the premises. Security permitted the assailant to enter the premises and concealed itself in a corner to apprehend the patron. After the assailant entered P.J.'s, security knocked him down causing him to fall and the gun fired as customers were trying to remove the assailant. This resulted in a patron, Sylvia Garner, being shot and wounded [exhibit E of motion, pages 30-31; and exhibit 5 of affirmation in opposition]. Patricia Peek, the sister of defendant/third-party plaintiff ELIZABETH GOODWIN, who managed the premises for many years, testified in her deposition that there were no other prior gun incidents at P.J.'s [exhibit E of motion, pages 31-32].

Plaintiff's counsel, in his affirmation in opposition to the instant motion, demonstrates that Ms. Peek failed to mention two other prior gun incidents and other violent criminal activity [*3]at P.J.'s. On October 1, 2008, two male individuals were having an argument at P.J.'s and a third male individual threatened them with a handgun. Police officers apprehended the third male individual and arrested him for criminal use of a firearm in the second degree, a felony, and menacing in the second degree, a misdemeanor [exhibit 8 of affirmation in opposition]. On May 1, 2011, more than nine months prior to plaintiff WARE's shooting, an individual named Tarell Ballo was shot while standing on the sidewalk in front of P.J.'s while attempting to open the door of the premises. Mr. Ballo was inside P.J.'s and left to have a smoke. When he tried to re-enter men were fidgeting in their jackets and running out of P.J.'s. One of the exiting men shot Mr. Ballo, who was attempting to get back into the premises, in his right foot [exhibit 6 of affirmation in opposition].

There were two violent incidents in 2008 at the premises. On June 23, 2008, a female patron was slashed with a broken wine glass on the right side of her head and sustained a severe laceration to her right ear. The assailant was another female patron, who was apprehended by the police and arrested for assault in the second degree, a felony [exhibit 7 of affirmation in opposition]. On October 17, 2008, a male patron at P.J.'s contacted the police about an incident in which he claimed that he was the victim at the premises of an unprovoked assault when a second male individual punched him in the mouth and after he fell as a result of the punch, three or four male individuals kicked him in the head, ribs and back. The police did not apprehend the perpetrators. The victim was transported to a hospital for treatment [exhibit 9 of affirmation in opposition].

NYPD Lieutenant Thomas O'Neill of the 32nd Precinct executed an affidavit [exhibit 10 of affirmation in opposition], on January 7, 2014, in support of an application by plaintiff The City of New York for a temporary restraining order, closing order and a motion for a preliminary injunction against defendants ELIZABETH GOODWIN, et. al.

in an action against P.J.'s. Lieutenant O'Neill stated: 3. Since 2009 I have become familiar with the bar operating as PJ's located at 2256 7th Avenue (hereinafter the "subject premises"). During this period of time the establishment has been the subject of repetitive illegal activity. Specifically, operators and patrons at the subject premises have received summonses and/or have been arrested for violating the New York State Alcohol Beverage Control Law, the New York City Administrative Code and the New York State Penal Law. Additionally, the establishment has been [the] site of dangerous assaults, robberies and disorderly conduct which present an ongoing and immediate danger to the surrounding community and the public at large.4. Furthermore, on March 20, 2009 the subject premises was previously ordered closed under the Nuisance Abatement Law due to the sale of alcoholic beverages to underage individuals on multiple occasions. Thereafter, the establishment was again closed on January 22, 2010 for a four month period as the location violated an executed agreement with the City of New York [exhibit 11 of affirmation in opposition] by allowing the premises to become disorderly and employing unlicensed security guards. [Emphasis added]

Edward Mamet, defendants/third-party plaintiffs P.J.'s security expert, in his affidavit in support of the instant motion, concludes that P.J.'s use on the date of the subject incident of a licensed security company, which was responsible for its guards, and the use of four visible [*4]surveillance cameras was sufficient to maintain the safety of patrons at the premises. He states, in ¶ 4. k., that "the video surveillance of the shooting reveals that this was a sudden, unexpected event with absolutely no warning signs of any threat to plaintiff or any of the patrons of P.J.'s from the assailant." However, Mr. Mamet fails to address prior violent and criminal activity at the premises and whether, in light of this, the attack on plaintiff WARE was foreseeable.

Plaintiff WARE's security expert, John Mahan, in his affidavit in opposition to the motion, details his review of numerous relevant documents about the subject incident and prior incidents at P.J.'s, the video surveillance tape of the subject incident, photographs of the scene of the shooting, and Mr. Mamet's affidavit. He concludes that the fact pattern in the Sylvia Garner shooting, on January 15, 2010, was the same as the subject incident, in that the perpertrater was allowed to leave the premises and then re-enter with a firearm. He states in his affidavit:

25. It is clear that the security measures employed by PJ's Cocktail Lounge were deficient in preventing firearms from entering the establishment, they were deficient in deterring people from bringing firearms into the establishment . . . In addition, they were deficient in not having a security guard circulating among the patrons inside the establishment and they should have had a whole body metal detector set up in the hallway to detect guns and confiscate any weapons in view of the numerous assaults, slashings and shooting of victims in PJ's Cocktail Lounge.26. PJ's Cocktail Lounge as the operator of the establishment was responsible for providing reasonable security for the patrons in the establishment. The operator of the establishment cannot avoid its duty by simply hiring someone to provide one or two licensed security guards to stand in the hallway. Additionally, in view of the prior shootings and criminal activity in the establishment, a simple patdown was an insufficient search under the circumstances . . . The discretionary use of a metal detecting wand was also not adequate security because, based on the prior shootings, it was foreseeable that the patrons would attempt to enter the establishment with a firearm. Ms. Peek, the manager, permitted the discretionary use of the wand.

Therefore, it is abundantly clear that there are triable issues of fact as to whether defendants/ third-party plaintiffs P.J.'s had a duty to protect plaintiff WARE from a sudden and unforseen assault at P.J.'s premises and whether P.J.'s negligently hired the security company it used in light of prior criminal incidents at the premises.

Discussion

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. (Winegrad v New York University Medical Center, 64 NY2d 851 [1985]; Qlisanr, LLC v Hollis Park Manor Nursing Home, Inc., 51 AD3d 651, 652 [2d Dept 2008]; Greenberg v Manlon Realty, 43 AD2d 968, 969 [2nd Dept 1974]).

CPLR Rule 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 [*5]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. (Boyd v Rome Realty Leasing Ltd. Partnership, 21 AD3d 920, 921 [2d Dept 2005]; 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]; Fotiatis v Cambridge Hall Tenants Corp., 70 AD3d 631, 632 [2d Dept 2010]).

In examining the evidence in the light most favorable to non-movant plaintiff WARE there are triable issues of fact with respect to whether defendants/third-party plaintiffs P.J.'s was negligent, careless and reckless in their ownership, operation, maintenance, supervision and control of their premises by allowing an assailant to gain entrance in light of prior criminal incidents at the premises.

A bar has a duty to protect its patrons from personal attack when the bar owner has reasonable cause to anticipate conduct on the part of a third party which is likely to endanger the safety of patrons. "Under the common law, the owner or possessor of property has the general duty to take reasonable measures to maintain his or her property in a reasonably safe condition (see, Nallan v Helmsley Spear, Inc., 50 NY2d 507 [1980]; Basso v Miller, 40 NY2d 233 [1976])." (Novikova v Greenbriar Owners Corp., 258 AD2d 149 [2d Dept 1999]). The Nallan Court, at 519, citing the Restatement, Tort 2d, § 344, held:

we find the rule stated in the restatement instructive:

"A possessor of land who holds it open to the public *** is subject to liability to members of the public while they are upon the land *** for physical harm caused by the *** intentionally harmful acts of third persons *** and by the failure of the possessor to exercise reasonable care to

"(a) discover that such acts are being done or are likely to be done, or

"(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it" (Restatement, Torts 2d, § 344).

Of course, a possessor of land, whether he be a landowner or a leaseholder, is not an insurer of the visitor's safety. Thus, even where there is an extensive history of criminal conduct on the premises, the possessor cannot be held to a duty to take protective measures unless it is shown that he either knows or has reason to know from past experience "that there is a likelihood of conduct on the part of third persons *** which is likely to endanger the safety of the visitor" (Restatement,Torts 2d, § 344, Comment f). Only if such conditions are met may the possessor of land be obliged to "take precautions *** and to provide a reasonably sufficient number of servants to afford a reasonable protection" (id.).

The plaintiff, in Nallan, 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. The Court of Appeals found that plaintiff made a prima facie case for negligence, with evidence of [*6]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, 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. In the subject incident, there are triable issues of fact whether based upon prior criminal activity at P.J.'s, "defendants failed in their obligation to take reasonable precautionary measures to minimize the risk and make the premises safe for the visiting public." Moreover, in Miller v State of New York (62 NY2d 506, 513 [1984]), the Court held, applying Nallan, that "a landlord has a duty to maintain minimal security measures, related to a specific building itself, in the face of foreseeable criminal intrusion upon tenants."

The Court of Appeals, in Mason v U.E.S.S. Leasing Corp. (96 NY2d 875, 878 [(2001]), instructed:

Landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person (see, Jacqueline S. v City of New York, 81 NY2d 288, 293-294 [1993]; Burgos v Aqueduct Realty Corp., 92 NY2d 544, 548 [1998]). A landlord has a duty to minimize the foreseeable danger from criminal acts when past experience alerts it to the likelihood of criminal conduct on the part of third persons. "Whether knowledge of criminal activities occurring at various points within a unified housing complex . . . can be sufficient to make injury to a person in one of the buildings foreseeable, must depend on the location, nature and extent of those previous criminal activities and their similarity, proximity or other relationship to the crime in question" Jacqueline S. v City of New York, 81 NY2d, at 295).

Thus, defendants/third-party plaintiffs P.J.'s may be liable to plaintiff WARE for failing to provide adequate security at their premises on the night of the subject incident. Judge Benjamin Cardozo, in Glanzer v Shepard (233 NY236, 239 [1920]), instructed that, "[it 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" has been articulated by Chief Judge Cardozo as follows:"If conduct has gone forward to such a stage that inaction would commonly result, not [*7]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" (Moch Co. v Rensselaer Water Co., 247 NY 160, 167-168 [1928]).

(See Connally v Diocese of Rockville Center, 116 AD3d 905 [2d Dept 2014]; Demshick v Community Housing Management Corp., 34 AD3d 518, 520 [2d Dept 2006]; Vetrone v Ha Di Corp., 22 AD3d 835, 837 [2d Dept 2005]; Alvino v Lin, 300 AD2d 421 [2d Dept 2002]; Gordon v Muchnick, 180 AD2d 715 [2d Dept 1992]; Kaplan v Dart Towing, 159 AD2d 610, 612 [2d Dept 1990]).

In Miller v State of New York (62 NY2d 506 [1984], liability was imposed upon the State for negligent security in its proprietary capacity as a landlord, for failing to maintain locked doors in a State-operated college dormitory in which a resident student had been raped, where there had been previous reports of nonresidents loitering in the dormitory, as well as reports from other campus dormitories of an armed robbery, burglaries, trespass and another rape. In the instant action, there are triable issues of fact whether there was adequate security provided by defendants/third-party plaintiffs P.J.'s, based upon the history of prior criminal activity at the subject premises and the sworn testimony of plaintiff WARE's security expert, setting forth the security deficiencies at P.J.'s at the time of the subject incident.

Therefore, in light of prior violent criminal activity at P.J.'s, defendants/third-party plaintiffs P.J.'s failed to heed the admonition espoused in Gross v Empire State Building Associates (4 AD3d 45, 46 [1d Dept 2004]):

We live in an uncertain and sometimes unpredictable world seemingly filled with daily reports of random acts of violence, 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.

Conclusion

Accordingly, it is

ORDERED, that the motion of defendants/third-party plaintiffs P.J.'s COCKTAIL LOUNGE & RESTAURANT, INC. and ELIZABETH GOODWIN for summary judgment and dismissal of plaintiff's complaint, pursuant to CPLR § 3212, is denied.

This constitutes the Decision and Order of the Court.

August 31, 2015

ENTER

___________________________

HON. ARTHUR M. SCHACK