| Ruiz v Griffin |
| 2010 NY Slip Op 02766 [71 AD3d 1112] |
| March 30, 2010 |
| Appellate Division, Second Department |
| Jose Ruiz, Appellant, v Kevin Griffin et al., Defendants,and Old Navy, Inc., Respondent. |
—[*1] McAndrew, Conboy & Prisco, Woodbury, N.Y. (Mary C. Azzaretto of counsel), forrespondent.
In an action, inter alia, to recover damages for wrongful death, etc., the plaintiff appeals, aslimited by his notice of appeal and brief, from so much of (1) an order of the Supreme Court,Orange County (Slobod, J.), dated January 8, 2009, as granted that branch of the motion of thedefendant Old Navy, Inc., which was for summary judgment dismissing the complaint insofar asasserted against it, and denied that branch of his cross motion which was for leave to amend thebill of particulars as to Old Navy, Inc., and (2) a judgment of the same court entered February 5,2009, as, upon the order, is in favor of Old Navy, Inc., and against him, dismissing the complaintinsofar as asserted against that defendant.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed insofar as appealed from, on the law, the complaint isreinstated insofar as asserted against the defendant Old Navy, Inc., that branch of the motion ofOld Navy, Inc., which was for summary judgment dismissing the complaint insofar as assertedagainst it is denied, that branch of the plaintiff's cross motion which was for leave to amend thebill of particulars as to Old Navy, Inc., is granted, and the order is modified accordingly; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241 [1976]). The issues raised on the appeal from the order are brought up for review andhave been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
In March 2004 the plaintiff's decedent, Timothy Ruiz, was employed as a manager by thedefendant Old Navy, Inc. (hereinafter Old Navy), whose store was located in the Galleria atCrystal Run. As a result of anonymous threats against Ruiz and acts of vandalism against his car,Ruiz was escorted from the store to his car in the mall parking lot by loss prevention agentsemployed by Old Navy. A specific parking lot was used in order to take advantage of a closedcircuit television camera owned by the defendant Filene's, Inc., and located at the mall exitnearest the American Cafe. On March 13, 2004, the defendant Kevin Griffin, who reportedlywas jealous of Ruiz's friendship with a coworker at Old Navy, fatally shot Ruiz as Ruiz waswalking to his car. It is undisputed that, just prior to the shooting, one of the [*2]two loss prevention agents escorting Ruiz stopped at his ownvehicle to retrieve his cigarettes, and the other agent waited for that agent while Ruiz walkedalone ahead to his car.
The plaintiff commenced this wrongful death action alleging, inter alia, that Old Navyattempted to protect the decedent but did so negligently and increased the risk of harm to thedecedent.
On a prior motion by Old Navy for summary judgment dismissing the complaint insofar asasserted against it, the Supreme Court denied the motion with leave to renew upon completion ofdiscovery (see CPLR 3212 [f]). On an appeal taken by Old Navy, this Court affirmed(see Ruiz v Griffin, 50 AD3d 1005 [2008]). Following discovery, Old Navy again movedfor summary judgment dismissing the complaint insofar as asserted against it. The SupremeCourt, inter alia, granted the motion and entered judgment in favor of Old Navy and against theplaintiff dismissing the complaint insofar as asserted against it, determining that the soleproximate cause of the decedent's death was Griffin's murderous act. The plaintiff appeals. Wereverse the judgment insofar as appealed from.
The elements of common-law negligence are a duty owed by the defendant to the plaintiff, abreach of that duty, and a showing that the breach of that duty constituted a proximate cause ofthe injury (see Ingrassia v Lividikos, 54 AD3d 721 [2008]; Vetrone v Ha DiCorp., 22 AD3d 835 [2005]; Gordon v Muchnick, 180 AD2d 715 [1992]). "[T]hescope of the duty owed by the defendant is defined by the risk of harm reasonably to beperceived" (Sanchez v State of New York, 99 NY2d 247, 252 [2002]; see Palsgraf vLong Is. R.R. Co., 248 NY 339, 344 [1928]; Ingrassia v Lividikos, 54 AD3d at 724;Demshick v Community Hous. Mgt. Corp., 34 AD3d 518, 520 [2006]; Vetrone v HaDi Corp., 22 AD3d at 837).
"[E]ven when no original duty is owed to the plaintiff, once a defendant undertakes toperform an act for the plaintiff's benefit, the act must be performed with due care for the safety ofplaintiff" (Kreindler, Rodriguez, Beekman and Cook, New York Law of Torts § 6:14 [14West's NY Prac Series 1997]; see Parvi v City of Kingston, 41 NY2d 553, 559 [1977];Demshick v Community Hous. Mgt. Corp., 34 AD3d at 518; Mirza v MetropolitanLife Ins. Co., 2 AD3d 808 [2003]; Gordon v Muchnick, 180 AD2d at 715;Kaplan v Dart Towing, 159 AD2d 610 [1990]; Restatement [Second] of Torts §323). "When the intervening, intentional act of another is itself the foreseeable harm that shapesthe duty imposed, the defendant who fails to guard against such conduct will not be relieved ofliability when that act occurs" (Kush v City of Buffalo, 59 NY2d 26, 33 [1983]; seeFowler v Yonkers Gospel Mission, 67 AD3d 635, 637 [2009]).
"Foreseeability includes what the [defendant] actually knew, as well as what it reasonablyshould have known" (Matter of World Trade Ctr. Bombing Litig., 3 Misc 3d 440, 467[2004]; see Sanchez v State of New York, 99 NY2d at 255). Questions of foreseeabilityare for the court to determine as a matter of law when there is only a single inference that can bedrawn from the undisputed facts (see Mei Cai Chen v Everprime 84 Corp., 34 AD3d321, 322 [2006]).
Here, Old Navy made a prima facie showing of its entitlement to judgment as a matter of lawdismissing the complaint insofar as asserted against it (see Ruiz v Griffin, 50 AD3d at1006). In response, however, viewing the evidence in the light most favorable to the plaintiff,affording him the benefit of every favorable inference (see Franklin v 2 Guys From LongPond, Inc., 50 AD3d 846 [2008]), and applying the Noseworthy doctrine (seeNoseworthy v City of New York, 298 NY 76 [1948]) to hold the plaintiff to a lesser standardof proof in this wrongful death action, the plaintiff submitted evidence sufficient to raise triableissues of fact as to whether Old Navy knew or should have known of a likelihood that a thirdperson might endanger the safety of the plaintiff's decedent, whether Old Navy satisfied the duty,if any, to offer protection against such criminal activity, and whether Old Navy's allegednegligence placed the plaintiff's decedent in a more vulnerable position than he would have beenhad Old Navy never taken any action at all (see Nallan v Helmsley-Spear, Inc., 50 NY2d507 [1980]; Demshick v Community Hous. Mgt. Corp., 34 AD3d at 518; Mirza vMetropolitan Life Ins. Co., 2 AD3d at 808; Lee v Chelsea Piers, 11 AD3d 257[2004]).
Accordingly, the Supreme Court erred in granting Old Navy's motion for summaryjudgment. The court's function on a motion for summary judgment is "to determine whethermaterial factual issues exist, not to resolve such issues" (Lopez v Beltre, 59 AD3d 683,685 [2009]; see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957];Miele v American Tobacco Co., 2 AD3d 799, 803 [2003] [issue finding, not issuedetermination]). A motion for summary judgment "should not be granted where the facts are indispute, where conflicting inferences may be drawn from the evidence, or where there are issuesof [*3]credibility" (Scott v Long Is. Power Auth., 294AD2d 348 [2002]; see Baker v D.J. Stapleton, Inc., 43 AD3d 839 [2007]).
Since Old Navy did not oppose that branch of the plaintiff's cross motion which was forleave to amend the bill of particulars as to Old Navy to add allegations sounding in its failure toadequately train its employees, and because the record does not indicate that Old Navy would beprejudiced by such an amendment, that branch of the cross motion should have been granted(see Sleepy's, Inc. v Orzechowski, 7 AD3d 511 [2004]; CPLR 3025 [b]). Skelos, J.P.,Santucci, Angiolillo and Chambers, JJ., concur.