| Beato v Cosmopolitan Assoc., LLC |
| 2010 NY Slip Op 00458 [69 AD3d 774] |
| January 19, 2010 |
| Appellate Division, Second Department |
| Miguel Beato, Respondent, v Cosmopolitan Associates,LLC, Appellant, et al., Defendants. |
—[*1] Richard J. Katz, LLP (Arnold E. DiJoseph, P.C., New York, N.Y. [Arnold E. DiJoseph III],of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant CosmopolitanAssociates, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court,Queens County (McDonald, J.), dated September 5, 2008, as, upon a jury verdict on the issue ofliability finding it 75% at fault in the happening of the incident, and upon a jury verdict on theissue of damages finding that the plaintiff sustained damages in the principal sums of $1,500,000for past pain and suffering, $250,000 for past medical expenses, $3,500,000 for future pain andsuffering, and $1,500,000 for future medical expenses, denied those branches of its motion, interalia, pursuant to CPLR 4404 (a) which were to set aside the jury verdict on the issue of liabilityand for judgment as a matter of law on the ground that the jury verdict was not supported bylegally sufficient evidence, or to set aside the verdict as contrary to the weight of the evidence orin the interest of justice, and for a new trial on liability and damages, and granted that branch ofits motion which was to reduce the damages award only to the extent of reducing the award forfuture pain and suffering from the principal sum of $3,500,000 to the principal sum of$2,000,000 and reducing the award for future medical expenses from the principal sum of$1,500,000 to the principal sum of $200,000.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thatbranch of the motion of the defendant Cosmopolitan Associates, LLC, which was pursuant toCPLR 4404 (a) to set aside the jury verdict on the issue of liability and for judgment as a matterof law is granted, and the remaining branches of the motion are denied as academic.
The plaintiff, a tenant in a building owned by the defendant Cosmopolitan Associates, LLC(hereinafter Cosmopolitan), commenced this action to recover damages for personal injuriessustained when he was assaulted by a group of men in the lobby of the building. As a result ofthe assault, the plaintiff sustained serious head and facial injuries. At trial, the plaintiff testifiedthat he had previously complained to the building superintendent that a group of men wereloitering in the lobby and that he suspected they were selling drugs. The jury found in favor ofthe plaintiff on the issue of liability, determining that Cosmopolitan was 75% at fault. The juryawarded the plaintiff the principal sums of $1,500,000 for past pain and suffering, $250,000 forpast medical expenses,[*2]$3,500,000 for future pain andsuffering, and $1,500,000 for future medical expenses.
After trial, Cosmopolitan moved pursuant to CPLR 4404 (a), inter alia, to set aside the juryverdict on the issue of liability, for judgment as a matter of law on the ground that the juryverdict was not supported by legally sufficient evidence, and to reduce the damages award. Thecourt denied the motion, with the exception of reducing the damages award for future pain andsuffering from the principal sum of $3,500,000 to the principal sum of $2,000,000 and reducingthe award for future medical expenses from the principal sum of $1,500,000 to the principal sumof $200,000. We reverse the order insofar as appealed from.
A landlord is not the insurer of the safety of its tenants (see Nallan v Helmsley-Spear,Inc., 50 NY2d 507, 519 [1980]). Nevertheless, "[l]andlords have a common-law duty to takeminimal precautions to protect tenants from foreseeable harm, including foreseeable criminalconduct by a third person" (Mason v U.E.S.S. Leasing Corp., 96 NY2d 875, 878 [2001];see Burgos v Aqueduct Realty Corp., 92 NY2d 544, 548 [1998]; Jacqueline S. v Cityof New York, 81 NY2d 288, 293-294 [1993]; Nallan v Helmsley-Spear, Inc., 50NY2d at 519). Third-party criminal conduct is considered foreseeable as a matter of law where itis "reasonably predictable based on the prior occurrence of the same or similar criminal activityat a location sufficiently proximate to the subject location" (Novikova v Greenbriar OwnersCorp., 258 AD2d 149, 153 [1999]; see Jacqueline S. v City of New York, 81 NY2dat 295). "Without evidentiary proof of notice of prior criminal activity, the owner's dutyreasonably to protect those using the premises from such activity never arises. 'The question ofthe scope of an alleged tort-feasor's duty is, in the first instance, a legal issue for the court toresolve' " (Williams v Citibank, 247 AD2d 49, 51-52 [1998], quoting Waters v NewYork City Hous. Auth., 69 NY2d 225, 229 [1987]). Whether the prior criminal activityoccurring within the subject premises provides sufficient evidence "to establish that it isreasonably foreseeable that the tenants are at risk of harm depends on a variety of factors,including 'the location, nature and extent of those previous criminal activities and theirsimilarity, proximity or other relationship to the crime in question' " (Venetal v City of New York, 21 AD3d1087, 1089 [2005], quoting Jacqueline S. v City of New York, 81 NY2d at 295;see Mason v U.E.S.S. Leasing Corp., 96 NY2d at 878; Williams v Citibank, 247AD2d at 52).
Here, the plaintiff's testimony that he previously complained of loitering and suspected drugsales in the lobby of the subject apartment building was insufficient to establish theforeseeability of the assault that led to his injuries (see Soto v 2101 Realty Co., 266AD2d 529 [1999]; Ragona v Hamilton Hall Realty, 251 AD2d 391 [1998]; cf. Neil v New York City Hous. Auth.,48 AD3d 767 [2008]). Accordingly, that branch of the Cosmopolitan's motion whichwas to set aside the verdict on liability and for judgment as a matter of law should have beengranted.
In view of our determination, we need not reach Cosmopolitan's remaining contentions.Rivera, J.P., Leventhal, Belen and Austin, JJ., concur. [Prior Case History: 2008 NY Slip Op32465(U).]