| Mitchell v Long Acre Hotel |
| 2017 NY Slip Op 01288 [147 AD3d 567] |
| February 16, 2017 |
| Appellate Division, First Department |
[*1]
| Erma Mitchell, Respondent-Appellant, v Long AcreHotel et al., Defendants, NJB Security Services, Inc., Respondent, and Circuit LLC et al.,Appellants-Respondents. |
Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Marcia K.Raicus of counsel), for appellants-respondents.
Segal & Lax, New York (Patrick D. Gatti of counsel), for respondent-appellant.
Lewis Johs Avallone Aviles, LLP, Islandia (Robert A. Lifson of counsel), forrespondent.
Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered May 12, 2016,which, inter alia, denied the motion of defendant 317 Aladdin Hotel Corp. (Aladdin) forsummary judgment dismissing the complaint as against it, and granted the motion of defendantNJB Security Services, Inc. (NJB) for summary judgment dismissing the complaint as against it,unanimously affirmed, without costs.
Aladdin failed to make out a prima facie showing that minimal security was provided at itsbuilding, a homeless shelter (see Stora vCity of New York, 117 AD3d 557 [1st Dept 2014]). Plaintiff testified that shecomplained about another resident's alleged propensity for violence, and in the weeks before herassault, the other resident was involved in two other altercations (compare Pink v Rome Youth HockeyAssn., Inc., 28 NY3d 994 [2016]). Moreover, Aladdin's night manager observed theresident on the night in question in a drunk and belligerent state in the hallway. Thus, Aladdinfailed to make an initial showing that it had no reason to know from past experience "that there[was] a likelihood of conduct on the part of third persons . . . which [was] likely toendanger the safety of the visitor" (Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 519[1980] [internal quotation marks omitted]; see Kahane v Marriott Hotel Corp., 249 AD2d164 [1st Dept 1998]).
Summary judgment was warranted however in favor of NJB, the security contractor forAladdin (see Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]). Nothing in theoral agreement or course of conduct between NJB and Aladdin evidenced an intent to makeplaintiff a third-party beneficiary (seeTamhane v Citibank, N.A., 61 AD3d 571 [1st Dept 2009]; see also Aiello v Burns Intl. Sec. Servs.Corp., 110 AD3d 234 [1st Dept 2013]). Nor was there any evidence that an exception tothe rule in Espinal applies. Aladdin's argument that its claim for common-law indemnityshould not have been dismissed is unpersuasive, since nothing in the record indicates that such aclaim was interposed against NJB, nor did Aladdin oppose NJB's motion below.
[*2] We have considered the parties' remaining contentions andfind them unavailing. Concur—Richter, J.P., Manzanet-Daniels, Gische, Webber andKahn, JJ.