MIRZA v. Richard A. Paredes, individually and d/b/a Swat Security Watchguard Apprehension Team, et al., respondents.

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

Shamim MIRZA, appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, et al., defendants, Richard A. Paredes, individually and d/b/a Swat Security Watchguard Apprehension Team, et al., respondents.

Decided: December 29, 2003

NANCY E. SMITH, J.P., LEO F. McGINITY, DANIEL F. LUCIANO, and SANDRA L. TOWNES, JJ. Robert Dembia, P.C., New York, NY, for appellant. Mendes & Mount, LLP, New York, N.Y. (Robert J. Brown and Allen R. McKay of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (LeVine, J.), dated October 9, 2002, which granted the motion of the defendants SWAT Security Group, Inc., and Richard A. Paredes, individually and d/b/a SWAT Security Watchguard Apprehension Team, for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion which was to dismiss the complaint insofar as asserted against SWAT Security Group, Inc., and substituting therefor a provision denying that branch of the motion;  as so modified, the order is affirmed, without costs or disbursements, and the complaint insofar as asserted against SWAT Security Group, Inc., is reinstated.

The defendant SWAT Security Group, Inc. (hereinafter SWAT), was hired by the organizer of a festival held in a church school auditorium in Queens to provide security guards for the event.   The plaintiff alleged, inter alia, that he was involved in an altercation with a group of young men inside the school, that the security guards forced him to leave the safety of the school, and that thereafter he was pursued and stabbed in the street by members of this group of men.

The Supreme Court properly determined that SWAT established that it owed no contractual duty to protect the plaintiff, and the plaintiff failed to raise a triable issue of fact as to whether the agreement between SWAT and the festival organizer was intended to confer a benefit on him as a member of the general public (see Duff v. Grenadier Realty Corp., 247 A.D.2d 577, 668 N.Y.S.2d 504;  Abramian v. Travellers Hotel Assocs. of LaGuardia, 203 A.D.2d 398, 610 N.Y.S.2d 310;  Buckley v. I.B.I. Sec. Serv., 157 A.D.2d 645, 549 N.Y.S.2d 744).

 However, SWAT failed to submit evidence sufficient to establish as a matter of law that it owed no common-law duty to the plaintiff, therefore, the Supreme Court erred in granting its motion to dismiss the complaint.   “[O]ne who assumes a duty to act, even though gratuitously, may thereby become subject to the duty of acting carefully” (Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 522, 429 N.Y.S.2d 606, 407 N.E.2d 451).   The deposition testimony submitted by SWAT in support of its motion presented a question of fact as to whether the actions of the security guards in allegedly forcing the plaintiff to leave the school placed him in a more vulnerable position than if they had taken no action (see Nallan v. Helmsley-Spear, Inc., supra;  Gauthier v. Super Hair, 306 A.D.2d 850, 762 N.Y.S.2d 736;  Thrane v. Haney, 264 A.D.2d 926, 695 N.Y.S.2d 628;  Kaplan v. Dart Towing, 159 A.D.2d 610, 552 N.Y.S.2d 665;  cf.  Heard v. City of New York, 82 N.Y.2d 66, 72-73, 603 N.Y.S.2d 414, 623 N.E.2d 541).   If the security guards assumed a duty of care, then SWAT would be liable for their negligent acts under the doctrine of respondeat superior (see Cohen v. Heritage Motor Tours, 205 A.D.2d 105, 618 N.Y.S.2d 387).

The Supreme Court properly dismissed the complaint insofar as it was asserted against Richard Paredes, individually and d/b/a SWAT Security Watchguard Apprehension Team. Paredes presented unrebutted evidence that he was not an owner or principal of SWAT and that he was not present in the school on the night of the incident.   In opposition, the plaintiff failed to present evidence sufficient to establish a triable issue of fact as to his liability.

We decline to consider SWAT's contentions on appeal regarding the alleged cross claim asserted against it by the defendants Harun Rashin and Alladin Sweets & Restaurant, Inc. SWAT's contentions regarding the validity of the cross claim were made for the first time in its reply papers (see Peterkin v. City of New York, 293 A.D.2d 244, 745 N.Y.S.2d 178) and were not addressed by the Supreme Court.

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