WELCH v. CUTTITTA (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Steven Z. Mostofsky, J.), dated February 27, 2025.  The order granted the motion of the defendants Maria Cuttitta and Peter Cuttitta for summary judgment dismissing the second amended complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

On January 13, 2022, the plaintiff allegedly was shot in the leg while attending an event on premises owned and managed by the defendants Maria Cuttitta and Peter Cuttitta (hereinafter together the Cuttittas).  Thereafter, the plaintiff commenced this action against the Cuttittas, among others, to recover damages for personal injuries.  The Cuttittas moved for summary judgment dismissing the second amended complaint insofar as asserted against them.  In an order dated February 27, 2025, the Supreme Court granted the Cuttittas' motion.  The plaintiff appeals.

“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” (King v Diplomat Hospitality Group, LLC, 218 AD3d 454, 454 [internal quotation marks omitted];  see Nallan v. Helmsley–Spear, Inc., 50 N.Y.2d 507, 518–519).  “However, an out-of-possession landlord is not liable for injuries that occur on the leased premises due to the criminal acts of third parties unless it has retained control over the premises or is contractually obligated to provide security” (Tambriz v. P.G.K. Luncheonette, Inc., 124 AD3d 626, 628;  see N.G. v. DRF Mgt. Corp., 223 AD3d 654, 654).

Here, the Cuttittas established, prima facie, that they were out-of-possession landlords because they did not retain control over the leased commercial premises, and under the lease, they were not contractually obligated to provide security to the commercial tenant (see Ryals v. West 21st St. Props., LLC, 200 AD3d 1084, 1085;  Tambriz v. P.G.K. Luncheonette, Inc., 124 AD3d at 628).  Moreover, the Cuttittas demonstrated, prima facie, that they had no prior notice of criminal activity or gun violence at the premises (see Lazarus v. Wildlife Preserves, Inc., 229 AD3d 454, 455;  Beato v. Cosmopolitan Assoc., LLC, 69 AD3d 774, 776).  In opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court properly granted the Cuttittas' motion for summary judgment dismissing the second amended complaint insofar as asserted against them.

CONNOLLY, J.P., CHAMBERS, FORD and MCCORMACK, JJ., concur.