| Stora v City of New York |
| 2014 NY Slip Op 03613 [117 AD3d 557] |
| May 20, 2014 |
| Appellate Division, First Department |
[*1]
| Skiboky Shaver Stora, Respondent, v City ofNew York et al., Appellants, and FJC Security Services, Inc., Respondent, et al.,Defendant. |
Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, LLP, Hauppauge (Scott G.Christesen of counsel), for appellants.
Chukwuemeka Nwokoro, Brooklyn, for Skiboky Shaver Stora, respondent.
Jones Hirsch Connors & Bull P.C., New York (Peter Read of counsel), for FJCSecurity Services, Inc., respondent.
Order, Supreme Court, New York County (Lucy Billings, J.), entered on or aboutDecember 4, 2013, which, insofar as appealed from as limited by the briefs, granteddefendant FJC Security Services, Inc.'s motion for summary judgment dismissing allclaims and cross claims against it, and denied the City of New York, the New York CityDepartment of Homeless Services (together, the City), and Volunteers ofAmerica-Greater New York, Inc.'s (VOA) motion for summary judgment dismissing thecomplaint as against them, unanimously modified, on the law, to grant so much of theCity and VOA's motion as sought to dismiss the complaint as against the City, and todeny so much of FJC's motion as sought to dismiss VOA's cross claim for contractualindemnification, and otherwise affirmed, without costs.
The provision of adequate security to prevent attacks by third parties at a homelessshelter is a governmental function, for the performance of which the governmental entitycannot be held liable unless it owes a special duty to the plaintiff (Akinwande v Cityof New York, 260 AD2d 586, 587 [2d Dept 1999], lv dismissed in part, denied inpart 93 NY2d 1030 [1999]; see also Marilyn S. v City of New York, 134AD2d 583, 585 [2d Dept 1987], affd 73 NY2d 910 [1989]). Since the recordcontains no evidence that the City owed a special duty to plaintiff, the City cannot beheld liable for the injuries plaintiff sustained when defendant Serrano shot him on shelterpremises.
However, an issue of fact whether VOA was negligent in its duty to provideminimum security in the shelter is presented by ample evidence that residents hadpreviously smuggled [*2]deadly weapons onto shelterpremises, inter alia, by jumping over the perimeter fence, and that the weakness of theperimeter fence had been reported to VOA (see Maheshwari v City of New York, 2 NY3d 288, 294[2004]; Osorio v City of NewYork, 44 AD3d 553 [1st Dept 2007]; Brewster v Prince Apts., 264AD2d 611, 614-615 [1st Dept 1999], lv denied 94 NY2d 762 [2000]).
Pursuant to the terms of the indemnification clause in the contract between FJC andVOA, VOA may assert a contractual indemnification claim against FJC to the extentplaintiff's injuries are found to have been "a result of an act or omission of FJC,including its employees." Issues of fact whether FJC was at least partly responsible forthe failure of perimeter security that led to plaintiff's being shot on shelter premises arepresented by the evidence that FJC had the "primary" responsibility for patrolling theperimeter fence, that an FJC security guard was aware of a fight, involving a knife,between plaintiff and Serrano earlier in the day of the shooting and that, in sight of theguards, Serrano left the premises by jumping over the fence, and that when he returnedlater with a gun he entered by jumping over the fence. Concur—Gonzalez, P.J.,Friedman, Moskowitz, Freedman and Kapnick, JJ. [Prior Case History: 2013 NYSlip Op 33123(U).]