| Fowler v Yonkers Gospel Mission |
| 2009 NY Slip Op 07980 [67 AD3d 635] |
| November 4, 2009 |
| Appellate Division, Second Department |
| Eileen J. Fowler, Appellant, v Yonkers Gospel Mission,Doing Business as Yonkers Gospel Mission & Home, Respondent, et al.,defendant. |
—[*1] Cerussi & Spring, White Plains, N.Y. (Richard D. Bentzen of counsel), forrespondent.
In an action, inter alia, to recover damages for negligence and wrongful death, the plaintiffappeals (1), as limited by her brief, from so much of an order of the Supreme Court, WestchesterCounty (Bellantoni, J.), entered March 21, 2008, as denied that branch of her motion which wasfor leave to renew her application for an adjournment to conduct an additional deposition and as,upon reargument, adhered to its original determination dated December 19, 2007, denying thatapplication, (2) from an order of the same court (Nicolai, J.), entered November 21, 2008, whichgranted the motion of the defendant Yonkers Gospel Mission, doing business as Yonkers GospelMission & Home, for summary judgment dismissing the complaint insofar as asserted against it,and (3) a judgment of the same court (Nicolai, J.), entered December 18, 2008, which, upon theorder entered November 21, 2008, is in favor of the defendant Yonkers Gospel Mission, doingbusiness as Yonkers Gospel Mission & Home, and against her dismissing the complaint insofaras asserted against that defendant.
Ordered that the appeals from the orders entered March 21, 2008, and November 21, 2008,are dismissed; and it is further,
Ordered that the judgment is modified, on the law, by deleting the provision thereof which isin favor of the defendant Yonkers Gospel Mission, doing business as Yonkers Gospel Mission &Home, and against the plaintiff dismissing the third cause of action alleging negligence insofaras asserted against that defendant; as so modified, the judgment is affirmed, without costs ordisbursements, that branch of the motion of the Yonkers Gospel Mission, doing business asYonkers Gospel Mission & Home, which was for summary judgment dismissing the third causeof action alleging negligence insofar as asserted against it is denied, and the order enteredNovember 21, 2008 is modified accordingly.[*2]
The appeals from the orders entered March 21, 2008, andNovember 21, 2008, must be dismissed because the right of direct appeal therefrom terminatedwith the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]).The issues raised on the appeals from the orders are brought up for review and have beenconsidered on the appeal from the judgment (see CPLR 5501 [a] [1]; Singh v Carrington, 18 AD3d 855[2005]).
The Supreme Court erred in awarding summary judgment to the defendant Yonkers GospelMission, doing business as Yonkers General Gospel Mission & Home (hereinafter the Mission),on the cause of action alleging negligence. An issue of fact exists as to whether the Mission wasnegligent in failing to find the knife kept in a dorm room by the defendant Neilasan Chung, andin failing to either confiscate it or evict Chung from the Mission. Chung subsequently used thatknife to fatally stab the plaintiff's decedent. The criminal intervention of third parties may be areasonably foreseeable consequence of circumstances created by a defendant. Where theintervening, intentional act of a third party is itself the foreseeable harm that shapes the dutyimposed, a defendant who fails to guard against such conduct will not be relieved of liabilitywhen that act occurs (see Bell v Board of Educ. of City of N.Y., 90 NY2d 944, 946[1997]; Kush v City of Buffalo, 59 NY2d 26, 33 [1983]; Vetrone v Ha Di Corp., 22 AD3d835, 839 [2005]).
The Mission's position is unlike that of a typical landlord, as the Mission exercises controlover the resident's daily lives (e.g., by enforcing curfew, requiring mandatory attendance atreligious activities, conducting regular inspections, setting restrictions on personal property,scheduling meal times). Thus, this is not a case where the Mission had no ability or authority tocontrol Chung's actions (cf. Adelstein v Waterview Towers, 250 AD2d 790 [1998]).Since there are triable issues of fact, the court should have denied the Mission's motion forsummary judgment dismissing the third cause of action alleging negligence.
The court correctly awarded summary judgment to the Mission on the remaining causes ofaction.
Finally, the plaintiff failed to show that an additional deposition of a Mission employee wasnecessary (cf. Williams v City of NewYork, 40 AD3d 847, 849-850 [2007]; Rosenblatt v Windsor Park Nursing Home, Inc., 28 AD3d 736[2006]). Therefore, the court did not err in denying that branch of the plaintiff's motion whichwas for leave to renew her application for an adjournment to conduct an additional deposition, orin adhering to its original determination upon reargument. Skelos, J.P., Santucci, Belen and Hall,JJ., concur.