| Six Anonymous Plaintiffs v Gehres |
| 2009 NY Slip Op 08903 [68 AD3d 1177] |
| December 3, 2009 |
| Appellate Division, Third Department |
| Six Anonymous Plaintiffs, Appellants, v Charles A. Gehres, AlsoKnown as Charlie Garrison, et al., Defendants, and Timothy Sullivan et al.,Respondents. |
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Malone Jr., J. Appeal from an order and judgment of the Supreme Court (Mulvey, J.),entered August 26, 2008 in Tompkins County, which, among other things, granted the crossmotion of defendants Timothy Sullivan and Teresa Sullivan for summary judgment dismissingthe complaint against them.
Defendants Timothy Sullivan and Teresa Sullivan owned a house in the City of Ithaca,Tompkins County, which they rented to plaintiffs.[FN1]The Sullivans frequently hired defendant Charles A. Gehres to make necessary repairs to thehouse. On one such repair project, Gehres enlisted the aid of his cousin, defendant ChristopherStein. Several weeks after completing the project, Stein returned to the house and sexuallyassaulted and kidnapped one of the plaintiffs.[*2]
Plaintiffs thereafter commenced this action alleging,among other things, that they sustained injuries as a result of negligence on the part of theSullivans and Gehres.[FN2]Plaintiffs then moved for summary judgment on the issue of defendants' liability and theSullivans cross-moved for summary judgment dismissing the causes of action against them, aswell as all cross claims.[FN3]Supreme Court denied plaintiffs' motion, granted the Sullivans' cross motion and, apparently,dismissed the complaint in its entirety. Plaintiffs now appeal.
The Sullivans satisfied their threshold burden of establishing that they took "minimalprecautions to protect [plaintiffs] from foreseeable harm, including foreseeable criminal conductby a third person" (Mason v U.E.S.S. Leasing Corp., 96 NY2d 875, 878 [2001]; seeBurgos v Aqueduct Realty Corp., 92 NY2d 544, 548 [1998]). Accordingly, to establish thatthe criminal conduct was foreseeable, plaintiffs were required to submit evidence that theconduct was " 'reasonably predictable based on the prior occurrence of the same or similarcriminal activity at a location sufficiently proximate to the subject location' " (Johnson v City of New York, 7 AD3d577, 578 [2004], lv denied 4 NY3d 702 [2004], quoting Novikova v GreenbriarOwners Corp., 258 AD2d 149, 153 [1999]). Here, plaintiffs did not demonstrate that theincident in question was foreseeable inasmuch as there is no evidence in the record of similarcrimes reported at the property or at properties in the immediate vicinity. Although plaintiffsmade reference to criminal trespasses that occurred in the area, they did not establish that theactivity was more than " 'ambient neighborhood crime' " (Johnson v City of New York, 7AD3d at 578, quoting Novikova v Greenbriar Owners Corp., 258 AD2d at 153).
We are not persuaded by plaintiffs' remaining contentions, including their claims that theywere entitled to judgment as a matter of law on their causes of action alleging that the Sullivansnegligently hired and supervised Gehres, and that Gehres negligently hired and supervised Stein.
Peters, J.P., Rose, Lahtinen and Kane, JJ., concur. Ordered that the order and judgment isaffirmed, with costs.
Footnote 1: Plaintiffs' names will be keptconfidential pursuant to Civil Rights Law §§ 50-b and 50-c.
Footnote 2: Plaintiffs successfully movedfor a default judgment with respect to the issue of Stein's liability.
Footnote 3: Gehres submitted a letter toSupreme Court in which he stated that he joined in and supported the Sullivans' cross motion.However, it is noted that the cross motion sought summary judgment dismissing only thoseclaims asserted against the Sullivans.