DECISION/ORDER Defendant Kent Security of New York (Kent) moves for an order awarding summary judgment dismissing the complaint and all cross claims. Boulevard Story, LLC and Mason Management Services Corp. d/b/a/ Stellar Management (Building Defendants) cross move for summary judgment dismissing the complaint. Kent contends that the cross motion should not be considered by the court because it was made after the expiration of the 120 day period in which to file. The court will allow the cross motion as the court can entertain an untimely cross motion even in the absence of good cause where a timely motion for summary judgment has been made seeking relief nearly identical to that sought by the cross motion (Filannino v. Triborough Bridge and Tunnel Authority 34 A.D.3d 280).This is an action for personal injuries arising out of an alleged assault that occurred at 2045 Story Ave. in the Bronx. On the evening of May 19, 2012 the plaintiff claims she was assaulted by an unknown individual inside the elevator at the subject premises. The building is owned and managed by the Building Defendants. Defendant Kent was retained by the Building Defendants to provide certain security services at the premises. According to the evidence submitted, the plaintiff, who lived at the building with her mother and her mother’s boyfriend, entered the premises at approximately 10:30 P.M. after she was “buzzed” in by her mother. She states that she walked through the lobby and upon entering the elevator she was physically and sexually assaulted by an unidentified male assailant. At her deposition the plaintiff denies ever seeing the assailant until she entered the elevator and he “touched her” (Def motion Ex. E at p.98 l.20-22). She also denied ever seeing him enter the building. However in a statement that the plaintiff provided to the Building Defendants after the incident, the plaintiff stated that she “held the door for the unknown man being cordial” (Def motion Ex. K). In her own written statement the plaintiff admits that she held the door open for her alleged assailant ‘because everyone in my building is nice”.(Id) The plaintiff commenced the instant action alleging negligence in securing the building and in hiring security improperly trained for the job.Kent seeks summary judgment on the grounds that it owed no duty to the plaintiff and therefore cannot be sued in negligence for the assault which took place on May 19, 2012. Kent argues that the contractual obligation between it and the Building Defendants does not give rise to tort liability in favor of a third party. The Security Officer Service Agreement provides at paragraph 2:Services: Kent shall perform or furnish persons designated and qualified to perform the Services as described in Exhibit “A” attached hereto… and Kent agrees to perform the services for client promptly and diligently and to the client’s satisfaction… Services are being provided only to the client. No other person or entity is, nor intended to be, a third party beneficiary under this agreement. Kent is assuming no duty to protect any persons or entities or their property. (Def Ex. L).In opposition to the motion the plaintiff submits the affidavit of Anthony Mottola who purports to be a security expert specializing in security of buildings, developing security plans for businesses, deployment of security personnel and related matters. Mr.Mottola opines that Kent was negligent in failing to provide adequate security at the premises. Among the negligence attributed to Kent was its failure to provide sufficient personnel to adequately secure the site; failure to provide adequate relief at the site; failure to assign personnel to essential sites at the building; failure to adequately control the deployment of personnel; and failure to properly supervise the personnel.The threshold question in determining tort liability is whether the alleged tortfeasor owed a duty of care to the injured party (Espinal v. Melville Snow Contractors, Inc. 98 N.Y.2d 136). Espinal affirmed the long held doctrine that a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party (Id. at 138). The Espinal decision carved out three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care and thus be potentially liable in tort to third parties. These exceptions are (1) where the contracting party, in failing to exercise reasonable care in the performance of their duties launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of 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 facts similar to those at bar the courts have consistently held that a security company contracted by the owner of a building to provide security services owes no duty to a plaintiff who is injured or assaulted at the premises by a third party (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 Corp. 16 A.D.3d 287 [1st Dept.] (Security company could not be held liable for death of tenant cause by third party intruders since contract with the 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 contractual or common law 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). Each of the above cited cases all dismissed actions as against companies hired to provide security at a premises or building in the absence of some contractual or common law duty. The contract in the instant case, like in those cited, does not give rise to a claim for liability in favor of a third party, to wit, the plaintiff. The contract clearly contemplates that the services were to be performed for the Building defendants and not intended to confer a benefit on any third party. Having failed to establish that she was a third party beneficiary owed a duty by Kent, the plaintiff’s claims as against Kent sounding in negligence must fail.However, as set forth in the Espinal decision there are three exceptions in which a party may seek recovery as a third party beneficiary. An examination of these three exceptions would still not aid the plaintiff in her claim for damages against Kent. The first exception, where the contracting party in failing to exercise reasonable care launches a force or instrument of harm does not apply here. There is no evidence that Kent launched a force or instrument of harm which ultimately resulted in the plaintiff being injured. The second exception that the plaintiff detrimentally relied upon the performance of the contracting party’s duties is also not established. There is no evidence that the plaintiff’s reliance on Kent providing security at the premises lulled her into some false sense of security (Nallan v. Helmsley-Spear Inc. 50 N.Y.2d 507). Plaintiff admits that she let the stranger who attacked her into the building because she was being ‘cordial”. There is no indication that she was lulled by some false sense of security that Kent was at the premises. Finally the third exception, where the contracting party has entirely displaced the other parties duty to maintain the premises safely is also not established in this case. There is no indication that Kent’s role in providing security services usurped the Building Defendants common law duty to maintain the premises in a reasonably safe condition. Kent’s obligations were clearly set forth in the Security Officer Service Agreement. These obligations certainly did not rise to a level where it could be said that Kent had displaced the Building defendants duties to maintain the premises. Summary judgment dismissing the negligence claims as against Kent is therefore appropriate.The Building defendants also move for summary judgment on the grounds that there is no evidence that their negligence was a contributing factor to the plaintiff’s injuries. In opposition to the motion the plaintiff relies upon the affidavit of her security expert who opines that the implementation of the security plan at the subject premises was a contributing factor in the plaintiff being attacked.It is a well settled principal that a landowner has a duty to exercise reasonable care to maintain his/her property in a safe condition and has a duty to maintain minimal security measures to minimize the risk of criminal behavior (Nallan supra; Miller v. State of New York 62 N.Y.2d 506). It is equally established that a landowner is not an insurer of the safety of those who enter the premises and therefore the duty to offer protection against criminality arises only when the risk of such criminality is foreseeable (Todorovich v. Columbia University 245 A.D.2d 45 [1st Dept] citing Nallan at p. 519). Foreseeability in this context has generally been equated with the degree to which a landlord has been apprised of the incidence of criminality within a particular building under his or her proprietorship (Id). It has further been held that a landlord’s duty to protect against criminal intruders arises only when ambient crime has demonstrably infiltrated the premises, or when the landlord is otherwise on notice as to the serious risk of such infiltration (Anzalone v. Pan Am Equities 271 A.D.2d 307 [1st Dept]).Here the evidence demonstrates that the Building defendants did undertake reasonable steps to maintain the premises in a reasonably safe condition. It is undisputed that the front door to the premises was locked and that tenants could only enter if they possessed a key fob. There were security cameras placed in the lobby and vestibule of the building and security guards were hired to monitor the building. These security precautions have been found to be sufficient to satisfy a landowner’s obligation to provide minimal security measures (Anchumudia v. Tahl Propp Equities LLC 123 A.D.3d 505 [1st Dept.]). Notwithstanding the expert’s opinion, the plaintiff has failed to rebut the defendants claim that it provided minimal security at the premises (see, Perez v. Hunts Point Associates 129 A.D.3d 498 [1st Dept]). An expert’s affidavit which contains only bare conclusory assertions is insufficient to defeat summary judgment (Wright v. New York City Housing Authority 208 A.D,2d 327 [1st Dept]).This court is cognizant of the horrific event which the plaintiff had to endure. The fault for this attack ultimately rests with the unknown intruder. In the context of this proceeding however the court must address the issue of fault. The question to be determined was whether the Building Defendants were negligent and whether that negligence was a substantial factor in causing the injury. Under the facts presented the court can see no merit in the claim that the attack was caused by the negligence of the Building Defendants. While the plaintiff is certainly not to blame for the dreadful act perpetrated on her, the court believes that a substantial factor in determining liability was plaintiff allowing the unknown intruder to enter the premises. No evidence was provided in opposition to the motion that crime at the building or area surrounding was of such a nature that an attack as the one that plaintiff suffered was foreseeable (Perez supra; Todorovich supra). In sum, there is nothing contained in the record provided to the court which would impose fault upon the defendants for the injuries sustained by the plaintiff. Summary judgment dismissing the complaint as against the Building Defendants is therefore granted.Accordingly it isORDERED AND ADJUDGED, that the defendant Kent Security of New York, Inc.’s motion for summary judgment be granted and the clerk is directed to enter judgment dismissing the complaint and all cross claims, and it is furtherORDERED AND ADJUDGED that the defendants Boulevard Story, LLC, and Mason Management Services Corp d/b/a Stellar Management’s motion for summary judgment be granted and the clerk is directed to enter judgment dismissing the complaint and all cross claims.This shall constitute the decision and order of the court.Dated: Nov. 16, 2018
