CAMPOLONGO v. DR RD INC (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, etc., the defendants DR & RD, Inc., doing business as Brazen Fox, William P. Harding, and Ruddy Delacruz appeal from an order of the Supreme Court, Westchester County (Alexandra D. Murphy, J.), dated December 4, 2023.  The order, insofar as appealed from, denied those branches of those defendants' motion which were for summary judgment dismissing the first, second, and fourth causes of action.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the motion of the defendants DR & RD, Inc., doing business as Brazen Fox, William P. Harding, and Ruddy Delacruz which were for summary judgment dismissing the first, second, and fourth causes of action are granted.

The plaintiffs commenced this action against, among others, the defendant DR & RD, Inc., doing business as Brazen Fox (hereinafter the Brazen Fox), the owner of a bar and restaurant, and the defendants William P. Harding and Ruddy Delacruz, security guards employed by the Brazen Fox, inter alia, to recover damages for personal injuries the plaintiff Marc Campolongo allegedly sustained in September 2019 when he was assaulted outside the Brazen Fox by two unknown assailants who had exited the Brazen Fox. Following the completion of discovery, the Brazen Fox, Harding, and Delacruz (hereinafter collectively the defendants) moved, among other things, for summary judgment dismissing the first, second, and fourth causes of action, alleging negligence against the Brazen Fox, Harding, and Delacruz, respectively.  In an order dated December 4, 2023, the Supreme Court, inter alia, denied those branches of the defendants' motion.  The defendants appeal.

“The elements of negligence are (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom” (Klein v. Catholic Health Sys. of Long Is., Inc., 231 A.D.3d 797, 799, 220 N.Y.S.3d 757 [internal quotation marks omitted];  see Abbott v. Johnson, 152 A.D.3d 730, 732, 61 N.Y.S.3d 34).  “A possessor of real property is under a duty to maintain reasonable security measures to protect those lawfully on the premises from reasonably foreseeable criminal acts of third parties” (Lea v. McNulty, 227 A.D.3d 971, 972, 212 N.Y.S.3d 152 [internal quotation marks omitted];  see Velez v. Pacific Park 38 Sixth Ave., LLC, 183 A.D.3d 590, 591, 121 N.Y.S.3d 618).  “To establish foreseeability, there is no requirement that the past experience of criminal activity be of the same type as that to which the plaintiff was subjected” (Lea v. McNulty, 227 A.D.3d at 972, 212 N.Y.S.3d 152 [internal quotation marks omitted];  see Bryan v. Crobar, 65 A.D.3d 997, 999, 885 N.Y.S.2d 122).  “[T]he criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location” (Lea v. McNulty, 227 A.D.3d at 972, 212 N.Y.S.3d 152 [internal quotation marks omitted];  see Novikova v. Greenbriar Owners Corp., 258 A.D.2d 149, 153, 694 N.Y.S.2d 445).  “[L]andowners have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control” (Lea v. McNulty, 227 A.D.3d at 972, 212 N.Y.S.3d 152 [internal quotation marks omitted];  see Velez v. Pacific Park 38 Sixth Ave., LLC, 183 A.D.3d at 591, 121 N.Y.S.3d 618).  However, “a possessor [or owner] of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults” (Velez v. Pacific Park 38 Sixth Ave., LLC, 183 A.D.3d at 591, 121 N.Y.S.3d 618 [internal quotation marks omitted];  see Oblatore v. 67 W. Main St., LLC, 169 A.D.3d 705, 706, 91 N.Y.S.3d 714).

Here, the evidence submitted by the defendants established, prima facie, that there was adequate security on the premises on the night of the incident.  Although the incident occurred in an area reasonably under the defendants' control, the defendants established that the attack was not reasonably foreseeable based on the surrounding circumstances (see Velez v. Pacific Park 38 Sixth Ave., LLC, 183 A.D.3d at 591, 121 N.Y.S.3d 618).  In opposition, the plaintiffs failed to raise a triable issue of fact.  Therefore, the Supreme Court should have granted those branches of the defendants' motion which were for summary judgment dismissing so much of the first cause of action as alleged negligent security against the Brazen Fox and the second and fourth causes of action, alleging negligence against Harding and Delacruz, respectively.

“ ‘[U]nder the theory of negligent hiring and retention, an employer may be liable for the acts of an employee acting outside the scope of his or her employment’ ” (Nickey v. City of Mt. Vernon, 230 A.D.3d 590, 591, 217 N.Y.S.3d 594, quoting Gonzalez v. City of New York, 133 A.D.3d 65, 67, 17 N.Y.S.3d 12).  “To hold a party liable under theories of negligent hiring, negligent retention, and negligent supervision, a plaintiff must establish that the party knew or should have known of the contractor's propensity for the conduct which caused the injury” (Hutchinson–Headley v. HP Arverne Preserv. Hous. Co., Inc., 219 A.D.3d 709, 710, 195 N.Y.S.3d 77 [internal quotation marks omitted];  see Dojce v. 1302 Realty Co., LLC, 199 A.D.3d 647, 650, 157 N.Y.S.3d 478).  “Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee's negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training” (Grogan v. Simon Prop. Group, Inc., 192 A.D.3d 769, 772, 144 N.Y.S.3d 206 [internal quotation marks omitted];  see Gipe v. DBT Xpress, LLC, 150 A.D.3d 1208, 1209, 52 N.Y.S.3d 904).  “When a business employs security guards or bouncers to maintain order, the use of physical force may be within the scope of their employment” (Norwood v. Simon Prop. Group, Inc., 200 A.D.3d 891, 894, 159 N.Y.S.3d 482;  see Fauntleroy v. EMM Group Holdings LLC, 133 A.D.3d 452, 453, 20 N.Y.S.3d 22).

Here, the defendants established, prima facie, that Harding and Delacruz were acting within the scope of their employment (see Grogan v. Simon Prop. Group, Inc., 192 A.D.3d at 772, 144 N.Y.S.3d 206).  In opposition, the plaintiffs failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).  Accordingly, the Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing so much of the first cause of action as alleged negligent hiring, retention, supervision, and training against the Brazen Fox.

The plaintiffs' remaining contentions are not properly before this Court.

DUFFY, J.P., MILLER, CHRISTOPHER and WAN, JJ., concur.