DECISION/ORDER All of the above named defendants move for an order awarding summary judgment dismissing the complaint. This is an action to recover for personal injuries allegedly sustained as the result of an altercation that took place on premises that were owned by defendant 701 West 135th Street New York LLC (“701 West 135″). At the time of the alleged incident the premises were leased by defendants OBMP-NY, John Iacono and Tahiry Jose (“OBMP”) and used as a nightclub called Suite 135. In the late evening, early morning hours of March 30-31, 2014 the plaintiffs, Edward Gaskin and Shamekka Green, were injured when a fight broke out between patrons in the premises. During the altercation a gun was fired with the bullet hitting Mr. Gaskin in his hand. Immediately after the shot was fired the patrons at the club begin to flee for the exits. In the ensuing melee Ms. Green was trampled and injured by the fleeing patrons. Defendant 5Points Security Corp. and its principals Manix Blandino and Emmanuel Carela (“5Points”) were hired by OBMP to provide security at the premises. Each of the defendants move for summary judgment alleging as a matter of law that they breached no duty to the plaintiffs.Defendant 701 West 135 argues that it is entitled to summary judgment since as an out of possession landowner it owed no duty to the plaintiffs. The plaintiffs argue that 701 West 135 cannot escape liability by claiming that it is an out of possession landowner. The plaintiffs contend that 701 West 135 was aware of prior violent incidents at the premises and had a duty to ensure that reasonable security measures were in place at the premises. The plaintiff seeks to impose liability upon 701 West 135 pursuant to R.P.L §231.It is well settled law that a landowner is obligated to take reasonable precautionary measures to minimize the risk of criminal acts and to make the premises safe for visitors when the owner is aware or should be aware that there is a likelihood of conduct on the part of third parties that would endanger visitors (Tambriz v. P.G.K Luncheonette Inc. 124 A.D.3d 626). It is equally settled that an out of possession landowner is not liable for injuries that occur on the leased premises due to the criminal acts of third parties unless it has retained control over the premises or is contractually obligated to provide security (Id; Inger v. PCK Dev. Co. LLC 97 A.D.3d 895).Here as an out of possession landowner which had no control over the premises or contractual obligation to provide security, summary judgment is warranted. The plaintiffs attempt to impute liability under the Real Property Law is without merit. Real Property Law §231(2) provides that the owner of real property knowingly leasing or giving possession to be used, wholly or partly, for any unlawful trade, manufacture or business or knowingly permitting the same to be used is deemed to be severally and jointly liable for any damage arising from such unlawful use, occupancy, trade, manufacture or business. Here it cannot be said that the operation of a nightclub could be considered as an unlawful trade or business (see, Urbano v. 710 Amsterdam Assoc. L.L.C. 39 A.D.3d 299 [1st Dept]). The testimony provided by principals of 701 West 35 and its management company reflect that they had no prior notice of prior criminal activity at the premises. The fact that there may have been violent altercations at the premises in the past or violations of the State Liquor Authority did not impose an obligation on 701 West 135 to provide security. 701 West 135 was an out of possession landowner that had relinquished control of the premises to its lessee and under the facts as presented cannot be held liable for the alleged injuries sustained by the plaintiffs (Urbano supra; Bryan v. Crobar 65 A.D.3d 997[2d Dept.]). The motion for summary judgment dismissing the complaint and any cross claims is therefore granted.Defendants 5Points also moves for summary judgment arguing that it cannot be held liable for the injuries sustained because it owed no duty to the plaintiffs. The defendant entered into an oral agreement with OBMP to provide security at the premises the night of the incident in question. Under applicable law 5Points argues that the plaintiffs cannot seek to impose liability as third party beneficiaries of the oral agreement. In opposition the plaintiffs argue that once 5Points undertook to provide security at the club they had a duty to patrons at the club to do so in a reasonably safe manner to prevent harm. The plaintiffs claim that the defendants were negligent in screening individuals entering the premises for weapons.As a general rule a contractual obligation standing alone will generally not give rise to tort liability in favor of a third party (Espinal v. Melville Snow Contractors, Inc. 98 N.Y.2d 136). Espinal carved out three exceptions to this rule. These exceptions occur (1) where the contracting party, in failing to exercise reasonable care in performance of their duty duties launches an instrument of harm; (2) where the plaintiff detrimentally relies on the contracting party’s duties; and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely (Id at 140). In a litany of cases involving an individual attempting to impose liability on a company hired to provide security, the courts have consistently held that the security company owes no duty to a plaintiff who has been injured or assaulted at the premises (Coon v. Hotel Gansevoort Group, LLC 150 A.D.3d 519 [1st Dept.] [Independent security contractor owed no duty to plaintiff who was assaulted by patron while being escorted from the premises]; Rahim v. Sottile Security Co. 32 A.D.3d 77 [1st Dept.] [Employee of retail store assaulted by intruder precluded from recovery against security company]; Anokye v. 240 East 175th Housing Dev. Fund 16 A.D.3d 287 [1st Dept.][ Security company could not be held liable for death of tenant caused by third party intruders since contract with building owners did not expressly assume any protective duty enforceable by the tenants]; Dabbs v. Aron Security 12 A.D.3d 396 [2nd Dept.][ Security company not liable for injury from physical attack by third party since there was no common law or contractual duty owed to plaintiff]; Gonzales v. National Corp. For Housing Partnership 255 A.D.2d 151 [1st Dept] [No duty arising out of contract to a third party by a contracting party unless the party directly undertook to confer benefits on the putative beneficiary or upon a class of persons to whom the putative beneficiary belonged]).All of the above cases stand for the long held doctrine that a party may not seek damages for negligent security that arises from a contractual obligation not involving the party. The plaintiff has failed to establish that any of the exceptions set forth in Espinal have been met. Plaintiffs conclusory claims that they detrimentally relied upon 5Points in providing security is not sufficient (see, Santiago v. K Mart Corporation 158 A.D.3d 596[st Dept.]). No where in the affidavits submitted by the plaintiffs in opposition do they mention having knowledge of a contract between OBMP and 5Points or about detrimental reliance on 5Points continued performance thereunder (Id). Nor have the plaintiffs shown that 5Points totally displaced OBMP’s duty to secure the premises. The motion by 5Points for summary judgment dismissing the complaint is therefore granted.Finally, OBMP moves for summary judgment alleging that it acted reasonably in providing security at the premises and should not be held liable for the unforeseen criminal act of a third party. They claim that they met their duty of protecting the plaintiffs from the risks of foreseeable harm. They further argue that they should not be held liable for the “spontaneous and unexpected criminal act of a third party” (Salice v. Kullen 274 A.D.2d 426 [2nd Dept]). In opposition to the motion the plaintiffs submit the affidavit of William J. Birks, Jr., a security consultant with 40 years of experience in the security industry, who opines that the security provided at the club was inadequate leading to the incident in which both plaintiffs were injured. The plaintiffs claim that the defendants failure to provide an affidavit from its own expert attesting to the fact that its security measures were adequate is fatal to their motion.It has long been held that although a landlord, or in this case a lessee, have a common law duty to minimize foreseeable dangers on their property, including the criminal acts of third parties, they are not insurers of a visitors safety ( Maheshwari v. City of New York 2 N.Y.3d 288; Burgos v. Aqueduct Realty Corp. 92 N.Y.2d 544). In cases arising out of injuries sustained on another’s property, the scope of the possessor’s duty is defined by past experience and the likelihood of conduct on the part of third persons which is likely to endanger the safety of the visitor (Maheshwari supra quoting Nallan v. Helmsley-Spear Inc. 50 N.Y.2d 507).In the instant case the plaintiffs claim that the security services performed by 5Points was wholly inadequate. They claim that all patrons entering the club were not searched for weapons either with a metal detector or hand wand and that certain patrons could pay money to skip the security line and enter the club without being searched. They also claim that 5Points was not a qualified and licensed company to perform security functions. The plaintiffs contend that given the violent and criminal history of the club and its surrounding area, the defendants were on notice that more stringent measures should have been taken to protect against the occurrence which injured the plaintiffs.The motion for summary judgment is denied. The courts function on a motion for summary judgment is issue finding and not issue determination (Sillman v. Twentieth Century Fox Film Corp. 3 N.Y.2d 395). Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders v. Ceppos 46 N.Y.2d 223).Here issues of fact exist with respect to whether the security precautions undertaken by the defendants were reasonable. In light of evidence that there were prior violent episodes at the club and the allegations that the area surrounding the club had a high incidence of crime, the court finds that issues of fact need to be decided by the jury as to whether the security which was in place was adequate and whether the resulting injuries were foreseeable. The un-rebutted claims offered by the plaintiff’s security expert relating to the defendant’s lapse in providing adequate security is sufficient to create a factual question for the jury (see e.g. Djurkovic v. Three Goodfellows 1 A.D.3d 210)[1st Dept]). In Djurkovich, the plaintiff was injured in the defendant’s club when he was assaulted with a box cutter by another patron at the club. The Appellate Court in affirming the Trial Court’s granting of defendant’s motion to set aside the verdict in favor of plaintiff held that the plaintiff’s failure to provide an expert in the field of security left the jury to speculate as to any deficiencies in the security provided and what additional steps, if any could have been taken to avoid the type of crime committed against the plaintiff. In the instance case there is sufficient evidence to allow the case to proceed to trial against OBMP. The affidavit submitted by plaintiff’s expert certainly raises questions of whether the security measures were reasonable in light of all the factors regarding crime and violence at the club and surrounding area and whether any failure to provide adequate security was a substantial factor in causing the injuries sustained by the plaintiffs. The motion for summary judgment is therefore denied.While the Court has granted summary judgment in favor of 5Points dismissing the complaint, that portion of the motion which seeks to dismiss the cross claims asserted by OBMP as against 5Points is denied. While a duty may not have been owed by 5Points to the plaintiffs, certainly the issue of whether 5Points is liable for indemnification or contribution for any loss sustained by OBMP remains an open question.Accordingly, the motion by 701 West 135th Street New York, LLC for summary judgment dismissing the complaint and any cross claims is granted. The motion by 5 Points Security Corp., Manix Blandino and Emmanuel Carela for summary judgment dismissing the complaint is granted. However, that portion of the motion which seeks to dismiss the cross claims asserted by OBMP-NY LLC, John Iacono and Tahiry Jose is denied. The motion for summary judgment by OBMP-NY,LLC, John Iacono and Tahiry Jose to dismiss the complaint and any cross claims is denied.This shall constitute the decision and order of the court.Dated: January 9, 2019
