LILIAN RODRIGUEZ v. MADISON SECURITY GROUP INC (2026)

Order, Supreme Court, Bronx County (Andrew J. Cohen, J.), entered on or about February 6, 2025, which denied defendants Preservation Management, Inc. and Casco Bay Realty Limited Partnership's motion for summary judgment dismissing the complaint as against them and dismissing defendant Madison Security Group, Inc.'s cross-claims against them, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed.  The Clerk is directed to enter judgment accordingly.

The parties agree that defendants' summary judgment motion was not untimely, because the 120th day after the note of issue was filed was a Saturday, and the motion was made on the first available business day, which was the following Monday.

On the merits, Preservation Management and Casco Bay demonstrated prima facie that they were not liable for the third-party defendant's alleged assault on plaintiff.  A landlord has no duty to prevent one tenant from attacking another tenant unless it has the authority, ability, and opportunity to control the actions of the assailant (Britt v. New York City Hous. Auth., 3 A.D.3d 514, 514, 770 N.Y.S.2d 744 [2d Dept 2004], lv denied 2 N.Y.3d 705, 780 N.Y.S.2d 311, 812 N.E.2d 1261 [2004];  see Cortez v. Delmar Realty Co., Inc., 57 A.D.3d 313, 313, 869 N.Y.S.2d 437 [1st Dept 2008], lv dismissed in part, denied in part 12 N.Y.3d 774, 879 N.Y.S.2d 32, 906 N.E.2d 1064 [2009] ).  Here, defendants had no authority or opportunity to remove Vasquez from the premises prior to the assault.  Defendants' employee testified that defendants were unaware of prior complaints of Vasquez engaging in violence, and plaintiff acknowledged that before the attack she never complained about Vasquez being violent.  Moreover, the assault upon the plaintiff was not reasonably foreseeable (see Britt, 3 A.D.3d at 514, 770 N.Y.S.2d 744;  Goris v. New York City Hous. Auth., 227 A.D.3d 498, 498, 211 N.Y.S.3d 324 [1st Dept 2024] ).

Plaintiff failed to raise an issue of fact in opposition.  Defendants' ability to evict Vasquez did not constitute the requisite authority, ability, and opportunity to control him (see Britt, 3 A.D.3d at 514, 770 N.Y.S.2d 744).  Plaintiff failed to identify any prior complaints about Vasquez being violent or making explicit threats of violence.  Plaintiff's generalized complaints about unsupervised children on the complex and about other children engaging in bullying were not sufficient to put defendants on notice that Vasquez might be violent (see Goris, 227 A.D.3d at 498, 211 N.Y.S.3d 324).

Because summary judgment should have been granted in favor of the moving defendants, their motion for summary judgment dismissing the cross-claims against them for common-law indemnification and contribution should have also been granted (see Dejesus v. Downtown Re Holdings LLC, 217 A.D.3d 524, 527, 192 N.Y.S.3d 13 [1st Dept 2023];  Balcazar v. Commet 380, Inc., 199 A.D.3d 403, 404, 158 N.Y.S.3d 1 [1st Dept 2021] ).