Monday, September 28, 2015

A negligent security claim.

Practice point:  The Appellate Division modified the Supreme Court's order and denied defendant's motion for summary judgment as to plaintiffs' negligence causes of action.  The Appellate Division found that there are triable issues of fact as to whether defendants breached their duty to take minimal security precautions to protect plaintiff's decedent from the criminal acts of third-party intruders and as to whether any such failure was a proximate cause of the attack on her. Viewing the evidence in the light most favorable to plaintiffs, there are questions of fact as to whether the lock on the building's front door, through which the assailant entered, was broken. In addition, evidence of a history of prior crimes, including assaults, in and around the building raises an issue of fact as to whether defendants' alleged negligence was a proximate cause of the attack.

The Appellate Division also found that the court abused its discretion in denying the portion of plaintiffs' cross motion seeking to preclude the deposition testimony of the assailant, who improperly terminated the deposition, thereby depriving plaintiffs of a full and fair opportunity to conduct their cross-examination.

Student note:  It was not improper for the court to address the parties' motions, made before decedent's death, in the order on appeal.  Although the court recalled and vacated its previous order, pursuant to  CPLR 1015), there was no need to renew the motions that were previously made.

Case:  Gonzalez v. 231 Ocean Assoc., NY Slip Op 06868 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A legal malpractice claim.