REGINA v. BROADWAY BRONX MOTEL COMPANY

Reset A A Font size: Print

Supreme Court, Appellate Division, First Department, New York.

Thelite REGINA, et al., Plaintiffs-Appellants, v. BROADWAY-BRONX MOTEL COMPANY, et al., Defendants-Respondents.

Decided: November 17, 2005

BUCKLEY, P.J., NARDELLI, WILLIAMS, GONZALEZ, McGUIRE, JJ. Mauro Goldberg & Lilling LLP, Great Neck (Anthony F. DeStefano of counsel), for appellants. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for Broadway-Bronx Motel Company, Milton Zelekowitz and Henry Horn, respondents. Ahmuty, Demers & McManus, Albertson (Brendan T. Fitzpatrick of counsel), for In-Town Motel Corp., respondent.

Order, Supreme Court, Bronx County (Bertram Katz, J.), entered April 27, 2004, which granted defendants' motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

 The court properly dismissed the complaint against defendant In-Town Motel Corp. (In-Town) on statute of limitations grounds.   Plaintiffs may not rely on the relation back doctrine (Buran v. Coupal, 87 N.Y.2d 173, 177, 638 N.Y.S.2d 405, 661 N.E.2d 978 [1995];  CPLR 203[b] ) since they have failed to demonstrate that defendant Broadway-Bronx Motel Company (Broadway) and In-Town were united in interest.  “[U]nity of interest will not be found unless there is some relationship between the parties giving rise to the vicarious liability of one for the conduct of the other” (Mercer v. 203 E. 72nd St. Corp., 300 A.D.2d 105, 106, 751 N.Y.S.2d 457 [2002];  Valmon v. 4 M & M Corp., 291 A.D.2d 343, 738 N.Y.S.2d 340 [2002], lv. denied 98 N.Y.2d 611, 749 N.Y.S.2d 3, 778 N.E.2d 554 [2002] ).   Plaintiffs' suspicions and conjecture as to the relationship between In-Town and Broadway find no support in the record, which fails to indicate that the two were related, except as landlord and tenant.   Nor is there evidence raising a triable issue as to whether In-Town's identity as the operator of the Motel was actively concealed from plaintiff.   In Broadway's answer, it denied operation of the Motel, putting plaintiffs on notice that a proper party had not been discovered.   Neither Broadway nor the insurer were duty bound to inform plaintiffs that they had not sued a proper party (see McGee v. Bells Supermarket & Bells Retail Assocs., 177 A.D.2d 975, 577 N.Y.S.2d 1021 [1991];  Hart v. Marriott Intl., Inc., 304 A.D.2d 1057, 1060 n. 3, 758 N.Y.S.2d 435 [2003] ).   Plaintiff made no relevant discovery demands on this topic until after the statute of limitations had already run.

 In any event, the court properly dismissed the complaint as against all defendants on the ground that the record presented no triable issue as to the foreseeability of the assault upon plaintiff in defendants' motel.   At most, plaintiffs have demonstrated ambient neighborhood crime, which was insufficient to raise an issue as to the foreseeability of criminal activity within the motel (see Buckeridge v. Broadie, 5 A.D.3d 298, 300, 774 N.Y.S.2d 132 [2004];  Johnson v. City of New York, 7 A.D.3d 577, 578, 777 N.Y.S.2d 135 [2004], lv. denied 4 N.Y.3d 702, 790 N.Y.S.2d 648, 824 N.E.2d 49 [2004];  Evans v. 141 Condominium Corp., 258 A.D.2d 293, 295, 685 N.Y.S.2d 191 [1999];  Todorovich v. Columbia Univ., 245 A.D.2d 45, 47, 665 N.Y.S.2d 77 [1997], lv. denied 92 N.Y.2d 805, 677 N.Y.S.2d 781, 700 N.E.2d 320 [1998] ).

 The complaint was properly dismissed against Broadway on the additional ground that it was an out-of-possession landlord with limited rights of re-entry, and as such it could not be held liable for the assaults (see DeLeon v. Port Auth. of New York & New Jersey, 306 A.D.2d 146, 761 N.Y.S.2d 54 [2003] ).