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This week's NYSBA excerpts
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Flynn v. Esplanade Gardens, Inc
8/24/2010
First Department
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PERSONAL INJURY. SECURITY NEGLIGENCE. LANDLORD. SPECIFICALLY TARGETED ASSAULT. PROXIMATE CAUSE . Plaintiff, who was assaulted in his apartment by his former girlfriend’s male companion, brought an action for negligent security against his landlord and its managing agent. Plaintiff claimed that the lobby security staff negligently permitted his former girlfriend and her companion to enter unannounced or, in the alternative, that they may have gained access into the building through an unlocked door. In moving for summary judgment, the defendants contended that they had always allowed the plaintiff’s girlfriend to enter unannounced, without objection from the plaintiff, and that there was no indication on the subject occasion that her companion intended to assault the plaintiff. Order denying the defendants’ motion for summary judgment is reversed, and motion granted. As a general rule, a targeted attack on a resident of an apartment building does not give rise to liability on the part of the landlord for negligent security. Here, where there was no evidence to indicate that the lobby security guard should have been aware of what the plaintiff’s former girlfriend and her companion intended, the general rule is applicable. Flynn v. Esplanade Gardens, Inc. Decided 8/31/10.
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Go to Slip Opinion •
New York Statutes
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Emerick Gross Real Estate, L.P. v. George A. Fuller Construction Management, Inc.
8/31/2010
Second Department
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REAL PROPERTY LAW. TRIALS. TREE DESTRUCTION. TRESPASS. TREBLE DAMAGES. AFFIRMATIVE DEFENSE. BURDEN OF PROOF. Plaintiff (property owner) brought an action for treble damages under RPAPL 861 against a general contractor and others for completely removing one tree (#1) and cutting down the branches of another (#2) during the construction of a parking lot. As to tree #2, the trial court refused the plaintiff’s request to charge that, to avoid treble damages, it was the defendants’ burden to prove that their actions were casual, involuntary and the result of negligence. Instead, the trial court imposed upon the plaintiff the burden of proving that the defendants’ actions were not casual and involuntary. Judgment awarding the plaintiff damages in the principal sums of $30,000 (#1) and $10,000 (#2), with treble damages on tree #1, is modified by remitting the matter for a new trial as to whether treble damages should apply to tree #2 as well. Contrary to the Supreme Court’s charge, the defendants had the burden of proving by clear and convincing evidence that the trespass was casual, involuntary and the result of good-faith negligence in order to avoid the imposition of treble damages. Emerick Gross Real Estate, L.P. v. George A. Fuller Construction Management, Inc. Decided 8/31/10.
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Go to Slip Opinion •
New York Statutes
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