JOHNSON v. Wade Cummings, Defendant. (2022)

Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered March 5, 2021, which granted defendant Leonie Cummings's (defendant) motion for summary judgment dismissing the complaint against her and denied plaintiff's cross motion to compel or preclude as moot, unanimously affirmed, without costs.

Plaintiff sustained injuries during an altercation with defendant Wade Cummings that occurred on the stairway outside the apartment of plaintiff's girlfriend, Wade's sister.  Defendant, the mother of Wade and the girlfriend, owned the building where the altercation occurred and lived in the basement apartment.  Plaintiff alleged that defendant breached her duty as the landowner to take minimal security precautions to protect users of the premises from foreseeable harm, including injury caused by the reasonably foreseeable criminal acts of third persons (see Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 550–551, 684 N.Y.S.2d 139, 706 N.E.2d 1163 [1998];  Nallan v. Helmsley–Spear, Inc., 50 N.Y.2d 507, 518–519, 429 N.Y.S.2d 606, 407 N.E.2d 451 [1980]).  In support of her motion for summary judgment dismissing the complaint against her, defendant submitted evidence demonstrating that she had no reason to anticipate that Wade would assault plaintiff, because there was no evidence that Wade had a prior history of physical violence towards plaintiff or anyone else (see Piazza v. Regeis Care Ctr., L.L.C., 47 A.D.3d 551, 553, 852 N.Y.S.2d 53 [1st Dept. 2008]).  The only evidence submitted by plaintiff of prior criminal activity in the building or by Wade was that six months before the assault, Wade broke into his sister's apartment while she was away, because he believed he had a right to use a room in the apartment.  Defendant's knowledge of that incident is insufficient as a matter of law to raise a factual issue as to the foreseeability of Wade's assault on plaintiff (see Bonano v. XYZ Corp., 261 A.D.2d 280, 280–281, 690 N.Y.S.2d 270 [1st Dept. 1999];  Jarosz v. 3135 Johnson Tenant Owners Corp., 246 A.D.2d 488, 667 N.Y.S.2d 752 [1st Dept. 1998]).

In addition, defendant demonstrated prima facie that the outer door to the premises had a working lock, and that Wade did not have a key to the premises at the time of the assault.  In opposition, plaintiff made no showing that Wade used a key to gain entrance to the premises or that the security measures in place were otherwise deficient (see Mason v. Carlisle Realty Corp., 236 A.D.2d 226, 226, 653 N.Y.S.2d 24 [1st Dept. 1997]).

In light of its determination to grant defendant's motion for summary dismissal of the complaint against her, the court correctly denied plaintiff's cross motion to compel discovery as moot (see e.g. Flame S.A. v. Worldlink Intl. [Holding] Ltd., 107 A.D.3d 436, 438, 967 N.Y.S.2d 328 [1st Dept. 2013], lv denied 22 N.Y.3d 855, 2013 WL 6067977 [2013]).