| Granata v City of White Plains |
| 2014 NY Slip Op 06053 [120 AD3d 1187] |
| September 10, 2014 |
| Appellate Division, Second Department |
[*1]
| Theodore Granata, Jr., as Executor of Concetta RussoCarriero, Deceased, et al., Respondents, v City of White Plains,Appellant. |
Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (Peter A.Meisels and Joanna M. Topping of counsel), for appellant.
Ivey, Barnum & O'Mara, LLC, New York, N.Y. (John Q. Kelly of counsel), forrespondents.
In an action, inter alia, to recover damages for negligence and wrongful death, thedefendant appeals, as limited by its brief, from so much of an order of the SupremeCourt, Westchester County (Lefkowitz, J.), entered January 8, 2013, as denied thatbranch of its motion which was for summary judgment dismissing the cause of actionalleging failure to maintain the subject premises in a reasonably safe condition.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiffs commenced this action, inter alia, to recover damages for negligenceand wrongful death after Concetta Russo Carriero was attacked and killed in a parkinggarage owned, operated, and maintained by the defendant City of White Plains. TheCity's Department of Parking was responsible for the operation and maintenance of thesubject parking garage. The decedent rented a monthly parking space from the City, andwas required to park on the seventh floor of the garage in an area designated for monthlycustomers. The City moved for summary judgment dismissing the complaint. TheSupreme Court denied that branch of the City's motion which was for summary judgmentdismissing the cause of action alleging a failure to maintain the subject premises in areasonably safe condition, concluding that the City acted in a proprietary capacity inowning and operating the parking garage and, thus, had a duty to take minimalprecautions to protect the decedent from foreseeable harm. The City appeals.
The City "may not be held liable to a person injured by the breach of a duty owed tothe general public, such as a duty to provide police protection, fire protection orambulance services" (Etienne vNew York City Police Dept., 37 AD3d 647, 649 [2007]). The City is not,however, immune from claims arising out of the performance of proprietary functions(see Applewhite v Accuhealth,Inc., 21 NY3d 420 [2013]). A proprietary function is one in which thegovernmental activities "essentially substitute for or supplement 'traditionally privateenterprises' " (Sebastian v State of New York, 93 NY2d 790, 793 [1999],quoting Riss v City of New York, 22 NY2d 579, 581 [1968]; see Miller vState of New York, [*2]62 NY2d 506, 511-512[1984]).
The security deficiencies alleged by the plaintiffs do not involve governmentalfunctions or arise out of a pure "exercise of discretion . . . with respect to[overall] security measures and the deployment of limited police resources" (Matter of World Trade Ctr.Bombing Litig., 17 NY3d 428, 455 [2011]). The instant matter does not involveallegations of, for example, the lack of patrol cars or officers on foot patrolling thegarage and the lack of general police protection (compare Clinger v New York CityTr. Auth., 85 NY2d 957, 959 [1995]; Weiner v Metropolitan Transp. Auth.,55 NY2d 175 [1982]), "mobilization of police resources for the exhaustive study of therisk of terrorist attack, the policy-based planning of effective counterterrorist strategy,and the consequent allocation of such resources" (Matter of World Trade Ctr.Bombing Litig., 17 NY3d at 448), participation by a teacher in supervising aplayground as part of a school district's overall security system strategy (see Bonner vCity of New York, 73 NY2d 930 [1989]), or a policy decision with respect to howthe issue of homelessness should be addressed (see Doe v City of New York, 67 AD3d 854, 856 [2009]).Rather, the gravaman of the complaint is not that the City failed to properly allocategovernment resources and services to the public at large, which was utilizing the garage,but that it failed in its capacity as a commercial owner of a public parking garage to meetthe basic proprietary obligation of providing minimal security for its garage property vialighting, alarms, cameras, and warning signs. These measures are within the normalrange of security measures necessary to satisfy the duty of care owed by any landlord orcommercial property owner to its tenants or invitees. In the "continuum of responsibilityto individuals and society deriving from its governmental and proprietary functions," thelapses complained of encompass a failure to maintain the reasonable security measuresexpected of any landlord (Miller v State of New York, 62 NY2d 506, 511-512[1984]).
Since the City acted in its proprietary, rather than its governmental, capacity here, wemust consider the issue of whether or not the attack upon the decedent was foreseeable inlight of a landlord's duty to take minimal precautions to protect its tenants and inviteesfrom foreseeable harm (seePerez v Real Tuff Piping & Heating, Inc., 73 AD3d 882 [2010]). Here, theSupreme Court correctly determined that triable issues of fact existed as to theforeseeability of an attack upon the decedent, thus precluding the award of summaryjudgment to the City (see Jacqueline S. v City of New York, 81 NY2d 288[1993]; Guarcello v Rouse SI Shopping Ctr., 204 AD2d 685 [1994]).
The City's remaining contentions are without merit. Rivera, J.P., Balkin, Chambersand Cohen, JJ., concur.