Recitation, as required by CPLR §2219(a), of the papers considered in review of the motion indicated below: Papers Numbered Notice of Motion and Affirmation in Support & Exhibits 1 Memorandum of Law in Support 2 Affirmation in Opposition & Exhibits 3 Affirmation in Reply 4 Memorandum of Law in Reply 5 Notice of Motion and Affirmation in Support of Cross Motion & Exhibits 6 Affirmation in Opposition to Cross Motion 7 DECISION/ORDER Upon the foregoing cited papers the Decision/Order on this motion is decided as follows: Gloria Pallero commenced this action following an incident that occurred on the premises owned by the defendant, Beech Terrace Partners, LLC (hereinafter “Beech Terrace”), when the plaintiff was allegedly stabbed by co-defendant Elio Romero on July 16, 2015 approximately five times as she was leaving work at the Tamara Grocery and Deli. Beech Terrace now moves for summary judgment dismissing the plaintiff’s complaint pursuant to CPLR 3212. The plaintiff opposes the motion and cross moves pursuant to CPLR 203(f), 305(C) and 3025(b) for leave to serve a supplemental summons and amended complaint to add Farm Development, LLC (hereinafter “Farm Development”) as a defendant in this action. The plaintiff, Ms. Pallero, was employed at Tamara Grocery and Deli from approximately July 2013 until July 2015 as a cook (Defendants Motion, Exhibit D, page 17 lines 15-20). Ms. Pallero worked from 6:00 a.m. to 3:00 p.m. seven days a week (page 17 lines 15-18). Ms. Pallero met Mr. Romero when she began working at Tamara Grocery and Deli (page 35 lines 22-24). Mr. Romero would go into the store daily to buy food (page 36 lines 6-12). Ms. Pallero testified that she knew Mr. Romero to be the superintendent of the building (page 35 lines 6-13). The attack on plaintiff occurred on a Sunday (page 41 lines 12-14). On the day of the incident, Ms. Pallero arrived to work at 6:00 a.m. (page 41 lines 15-17). Although the plaintiff would typically complete her workday at 3:00p.m., on this specific day, Ms. Pallero stayed at work after hours to have a couple of beers with the owners family members (page 42 lines 18-25). Immediately before the incident, Ms. Pallero was inside the store standing in front of the counter with her purse waiting for the owner to pay her salary for the day (page 56 line 15 — page 57 lines 3). Ms. Pallero was standing in the doorway of the premises at approximately 4:00 p.m. (page 42 lines 10-15). The plaintiff saw Mr. Romero open the door walking fast towards her (page 67 lines 12-17). Mr. Romero subsequently stabbed the plaintiff three times on her right side and then stabbed her on her upper left arm (page 69 lines 18- 21). The fourth stab wound is underneath the plaintiffs left breast and the fifth stab wound was in her stomach (page 71 lines 6-13). A party seeking summary judgment must make a prima facie showing that it is entitled to judgment as a matter of law by proffering sufficient evidence to demonstrate the absence of any material issue of fact (Alvarez v. Prospect Hospital, 68 NY2d 320). Once the proponent of a motion for summary judgment meets this burden it is incumbent upon the party opposing the motion to submit proof in admissible form that an issue of fact exists which necessitates a trial (Zuckerman v. City of New York, 49 NY2d 557). The courts function on a motion for summary judgment is issue finding and not issue determination (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395). Summary judgment is a drastic remedy that deprives the litigant of his or her day in court. Therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to the non-moving party (see Assaf v. Ropog Cab Corp., 153 AD2d 520). Summary judgment will only be granted if there are no material, triable issues of fact (see Sillman supra). Failure of the movant to sustain its burden requires denial of the motion, regardless of the sufficiency of the opposition (Winegrad v. New York Univ. Med Center, 64 NY2d 851). Beech Terrace’s initial argument is that it cannot be liable for Mr. Romero’s actions because Mr. Romero was hired as an independent contractor. An employer who hires an independent contractor is not liable for the independent contractor’s negligent acts (Rosenberg v. Equitable Life Assur. Soc. Of the U.S., 79 NY2d 663, citing, Whitaker v. Norman, 75 NY2d 779, 782). “The determination of whether one is an independent contractor typically involves a question of fact concerning which party controls the methods and means by which the work is to be done” (Lazo v. Mak’s Trading Co., 199 AD2d 165). Where proof on the issue of control presents no conflict, the matter can be determined by the court as a matter of law (Id.). “Factors relevant to assessing control include whether the worker 1) worked at his own convenience, 2) was free to engage in other employment, 3) received fringe benefits, 4) was on the employer’s payroll and 5) was on a fixed schedule” (Bynog v. Cipriani Group, 1 NY3d 193). In support of this argument, the defendant relies on the testimony and affidavit of Romulo Paulino. Mr. Paulino is the property manager at Farm Development (Defendants Motion, Exhibit E, page 9 line 13- page 10 line 4). Farm Development buys, builds, renovates, manages, and sells properties (page 10 lines 18-23). At the time of the incident, Beech Terrace owned the property located at 365 Beekman Avenue where the incident occurred (page 22 lines 2-5). Farm Development is the umbrella company (page 72 lines 7-15). Mr. Paulino’s job duties were to ensure that the properties were well kept, ensure that contractors were doing their jobs, answer tenant complaints, repairs, payroll, and maintain garbage (page 22 lines 10-21). Mr. Paulino explained that they hired independent contractors or part-time independent contractors. Depending on the buildings, these individuals would go on various routes to do garbage (page 23 lines 15-24). There were no full-time employees in any of the buildings (page 23 line 25- page 24 line 3). The building at 365 Beekman Avenue is three floors (page 24 lines 21-24). On the street level there is a commercial tenant (page 25 lines 4-6). Above the commercial tenants on the remaining two levels were residential apartments (page 25 lines 17-22). The buildings did not have a superintendent (page 29 lines 5-7). According to Mr. Paulino, Mr. Romero would be in charge of taking out all the garbage on “garbage days” and do recyclables three times a week (page 29 lines 12-23). Mr. Romero’s schedule was Mondays, Wednesdays, and Fridays (page 29 line 24- page 30 line 3). There was no other contractor that would come in on the weekends to do garbage as Mr. Romero’s schedule coincides with when garbage was going out (page 4-16). The defendant also annexed an affidavit by Mr. Paulino. Mr. Paulino attests that Mr. Romero did not work on Sundays and was not working for Farm Development or any of its affiliated companies on the day of the plaintiff’s incident. Pursuant to the affidavit, Mr. Romero had a route for the company that included taking out the garbage at 365 Beekman Avenue was well as various other properties managed by Farm Development (see Exhibit I). Furthermore, according to this affidavit, Ms. Pallero was Mr. Romero’s girlfriend. Mr. Paulino claims that Mr. Romero advised him that he got into an argument with his wife about Ms. Pallero and temporarily moved into the basement at 610 Beech Avenue. Mr. Paulino gave Mr. Romero permission to move in the basement temporarily (Exhibit E, page 37 lines 2-8). Mr. Paulino did not tell anyone at Farm Development that he was living in the basement because he felt bad for the defendant (page 37 lines 9-19). Mr. Romero was only within the basement for approximately two weeks when the incident occurred. Pursuant to Ms. Pallero’s examination before trial, Ms. Pallero did not have a sexual or romantic relationship with Mr. Romero (Exhibit D, page 38 lines 6-11). In opposition, the plaintiff argues that a question of fact exists as to whether Mr. Romero was an employee of Beech Terrace. In support of this argument, the plaintiff relies on the testimony of Maria Rodriguez, Mr. Romero’s wife, and Luis Diaz, an employee at Tamara Deli. Ms. Rodriguez testified that Mr. Romero was also involved in doing plumbing, electrical and general cleaning work within the buildings (page 51 line 24- page 52 line 3). She maintains that Mr. Romero stayed at the basement after he was told that Ms. Pallero was pregnant (page 45 lines 9-18). Mr. Diaz additionally testified that Mr. Romero was the super and that he would see him on a daily basis and that he would clean (Exhibit F, page 11 line 25- page 12 line 12). However, both Ms. Rodriguez and Mr. Diaz are not parties to the employment agreement between Mr. Romero and Beech Terrace. The plaintiff further maintains that because there is no deposition of Mr. Romero, that the motion for summary judgment is premature. However, “a grant of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence” (Bailey v. New York City Transit Authority, 270 AD2d 156). “A party contending that a motion for summary judgment is premature is required to demonstrate that additional discovery might lead to relevant evidence or that the facts essential to oppose the motion are exclusively within the knowledge and control of the movant” (Reynolds v. Avon Grove Props., 129 AD3d 932). In their opposition, the plaintiff displays mere hope that additional discovery may lead to sufficient evidence to defeat the motion. “The mere hope that additional discovery may lead to sufficient evidence to defeat a summary judgment motion is insufficient to deny such a motion” (Singh v. New York City Housing Authority, 177 AD3d 475). Beech Terrace alternatively argues that even if there is an issue of fact as to Mr. Romero’s employment status, summary judgment should still be granted because Beech Terrace has demonstrated that Mr. Romero was not acting within the scope of his employment and not acting under the direction or control of Beech Terrace when he stabbed the plaintiff. An employer may be held vicariously liable under the doctrine of respondeat superior for a tort committed by an employee during the performance of his or her duties, even if such duties are carried out in an irregular fashion or disregard of instructions (Adams v. New York City Transit Authority, 211 AD2d 285, citing Riviello v. Waldron, 47 NY2d 297, 302). When actions are brought on by a matter that is personal in nature, the source of which is not job related, the First Department has held that an individual is not acting within the scope of his employment (see Seymour v. Gateway Prods., 295 AD2d 278). The evidence presented by Beech Terrace demonstrates that Mr. Romero was acting outside the scope of his employment and that his actions were a result of personal motives. In opposition, the plaintiff failed to point to any evidence to demonstrate how the assault on the plaintiff was job related or within the course of Mr. Romero’s duties. The defendant next argues that the negligent hiring, retention, supervision or training claim must be dismissed because Beech Terrace had no knowledge of Mr. Romero’s propensity for violence prior to the incident. “Recovery on a negligent hiring and retention theory requires a showing that the employer was on notice of a propensity to commit the alleged acts” (White v. Hampton Mgt. Co. LLC., 35 AD3d 243, citing, Gomez v. City of New York, 304 AD2d 374). Under the theory of negligent hiring and retention, an employer may be liable for the acts of an employee acting outside the scope of his employment (Gonzalez v. City of New York, 133 AD3d 65). “An employer is under no duty to inquire as to whether an employee has been convicted of crimes in the past” (Yeboah v. Snapple, Inc., 286 AD2d 204, 205, citing, Amendolara v. Macy’s N.Y., 19 AD2d 702). However, a duty to investigate a prospective employee’s background exists when an employer knows of facts that would lead a reasonably prudent person to investigate (T.W. v. City of New York, 286 AD2d 243,245). The defendant established that Beech Terrace had no knowledge of Mr. Romero’s propensity for violence prior to the assault through the testimony and affidavit by Mr. Paulino. Mr. Paulino attests that he is unaware if a background check was conducted of Mr. Romero (page 33 lines 5-14). Mr. Paulino testified that Mr. Romero was a “quiet guy” who kept to himself (page 37 line 24-page 38 line 3). In his affidavit, Mr. Paulino states that he was always pleased with Mr. Romero’s work and attitude and never received complaints about Mr. Romero from other tenants or individuals. He further attests that he never saw or learned of Mr. Romero acting in any violent or aggressive manner prior to the incident. In opposition, the plaintiff fails to raise an issue of fact. The plaintiff relies on Ms. Pallero’s testimony that Mr. Romero would come into the store and drink multiple times a day and that it can be reasonably inferred from the testimony that Beech Terrace has constructive notice of the defendants violent propensities. The plaintiff further relies on the testimony of Mr. Diaz, an employee at Tamara Grocery and Deli who testified that he knew Mr. Romero was a violent man and the testimony of Ms. Rodriguez pertaining to a prior conviction by Mr. Romero for discharging a firearm into the air (Exhibit G, page 50 lines 1-7). However, the plaintiff fails to point to evidence from Beech Terrace demonstrating that the defendant knew or should have known of any violent propensity. Accordingly, Beech Terrace’s motion for summary judgment dismissing the plaintiffs claim for negligent hiring and retention pursuant to CPLR 3212 is granted. Beech Terrace lastly argues that the plaintiffs claim for negligent security must be dismissed because the defendant was not on prior notice of prior similar acts on the premises and that the attack on the plaintiff was a targeted attack. “Although landlords and permittees have a common-law duty to minimize foreseeable dangers on their property, including the criminal acts of third parties, they are not the insurers of a visitors safety” (Maheshwari v. City of New York, 2 NY3d 288, 294, citing Burgos v. Aqueduct Realty Corp., 92 NY2d 544, 548). In support of the motion, Beech Terrace relies on Flynn v. Esplanade Gardens, Inc., 76 AD3d 490, in which the First Department held that a targeted attack on an apartment building resident does not give rise to liability on the landlord for failure to provide security. “Landlords have a duty to take minimal precautions against foreseeable criminal activity by third parties” (Carmen P. Maria P. v. PS & S Realty Corp., 259 AD2d 386, 387, citing, Jacqueline S. v. City of New York, 81 NY2d 288, 293-294). “The duty to protect against criminal intruders only arises when ambient crime has seriously infiltrated the premises or when the landlord is on notice of a serious risk of such infiltration” (Evans v. 141 Condominium Corp., 258 AD2d 293). “The criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location” (Novikova v. Greenbriar Owners Corp., 258 AD2d 149). The defendant has demonstrated a lack of notice of similar criminal activity around the premises through the affidavit of Mr. Paulino in which Mr. Paulino attests that he visited the properties at Beech Terrace almost daily and never received complaints about Mr. Romero nor did he observe inappropriate or violent behavior from Mr. Romero. In opposition, the plaintiff fails to raise an issue of fact. The First Department has granted summary judgment to building owners in premises liability cases where plaintiffs invite the possibility of danger onto their premises or failed to take protective measures against a possible security threat (see Weiss v. Park Towers South Company, LLC, 227 AD3d 489). As Beech Terrace points out in support of its motion, at the time of the incident, the business was open, and the door was unlocked for the patrons of Tamara Grocery and Deli to enter and exit the premises. The plaintiff does not point to any case law demonstrating the type of security Beech Terrace should have provided at their premises that could have prevented the assault on Ms. Pallero. Moreover, in opposition, the plaintiff in opposition merely points to the testimony from Officer Chris Dowling who testified that “the whole block is the worst block in the precinct” (Exhibit H, page 28 lines 2-5). Mr. Dowling stated this was because “there’s gangs that live right there” (page 28 lines 8-13). Plaintiff failed to demonstrate that Beech Terrace had prior notice of similar acts carried out on the premises and that Mr. Romero’s actions were foreseeable based on prior similar criminal activity. Accordingly, the defendant’s motion is granted in its entirety. The plaintiff cross moves pursuant to CPLR 203(f)m 305(C) and 3025(b) for leave to serve a supplemental summons and amended complaint to add Farm Development as a defendant in this action. To reiterate the facts, Beech Terrace was the owner of the premises. Farm Development is in the business of buying, building, renovating, and managing the property. Farm Development oversaw the hiring of independent contractors and part time independent contractors to perform the work within the premises along with other buildings that Farm Development managed. The plaintiff relies on the testimony of Mr. Paulino that the defendant, Mr. Romero was hired by Farm Development to work on the premises. The principal of Farm Development and Beech Terrace was an individual named Ari Freedman. The plaintiff argues that Farm Development should be added because the claims arise from the same incident and alleges that Farm Development had notice. Pursuant to CPLR 203(f), a claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences to be proved pursuant to the amended pleading. CPLR 305(c) states at any time, in its discretion and upon such terms as it deems just, the court may allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons issued is not prejudiced. According to CPLR 3025(b), a party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading. In order to add a new defendant pursuant to the relation back doctrine, both claims must arise out of the same conduct, transaction or occurrence; the new party is “united in interest” with the original defendant, and by reason of the relationship can be charged with notice of the action that he will not be prejudiced in maintaining a defense on the merits; and “the new party knew or should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against the party” (Buran v. Coupal, 87 NY2d 173). It is evident that the first two elements of the relation back doctrine have been satisfied. The plaintiff asserts that pursuant to the proposed amended complaint, the plaintiff seeks to assert the same claims against Farm Development arising out of the stabbing incident. Additionally, the test for determining the second condition, unity of interest, is “whether the defenses between the parties are the same such that their interests stand or fall together” (Ellis v. Newmark & Company Real Estate, Inc., 209 AD3d 520). The plaintiff has demonstrated that Farm Development is united in interest with Beech Terrace by way of the fact that Farm Development manages the properties owned by Beech Terrace and both entities are owned by Ari Freedman and maintain their offices at the same address. The plaintiff further points to evidence in Mr. Paulinos examination before trial demonstrating that people hired by Farm Development were paid out of accounts belonging to either Farm Development or Beech Terrace depending on availability funds (Exhibit E, page 38 line 13- page 39 line 1). However, in the instant matter, relation back would not be proper because the delay in bringing suit was not due to any mistake with respect to defendants identities which were known to the plaintiff at all relevant times (see Davis v. Sanseverino, 145 AD3d 519). “With regard to the third relation-back condition, a plaintiff need only show a mistake was made in not adding additional defendants before the statute of limitations expired, not that the mistake was also excusable” (Ellis v. Newmark & Company Real Estate, Inc., 209 AD3d 520). As Beech Terrace points out in opposition, this action was commenced nine years ago. Approximately five years have passed since the deposition of Mr. Paulino giving the plaintiff notice that Farm Development hired Mr. Romero and should have been added as a defendant. The plaintiff failed to establish that a mistake was made in not adding Farm Development as a defendant. Accordingly, the plaintiffs cross-motion to amend the pleadings to add Farm Development as a defendant is denied in its entirety. Based on the foregoing, it is hereby: ORDERED AND ADJUDGED, that Beech Terrace Partners motion to dismiss the plaintiffs complaint pursuant to CPLR 3212 is granted in its entirety and it is further, ORDERED AND ADJUDGED, that Gloria Pallero’s cross-motion to amend the complaint to add Farm Development, LLC as a defendant is denied, and it is further, ORDERED AND ADJUDGED, that the defendants shall serve a copy of this decision and order on all parties within twenty (20) days of notice of entry. This constitutes the decision and order of the court. Dated: July 15, 2024
