Plaintiff, Defendants. Third-Party Plaintiffs, Third-Party Defendants.

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1 . MEMORANDUM SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NASSAU PRESENT: Hon. Burton S. Joseph, Justice. IRENE DURHAM, - against - Plaintiff, SONETTE BEAUFORT, SEAN MASON, COMMAND SECURITY CORPORATION, CORPORATE PROPERTY INVESTORS and PEMBROOK MANAGEMENT, INC., Trial/IAS Part 19 Index No Motion No. 2,3,4 & 5 Motion Date July 24, 2001 Defendants. CORPORATE PROPERTY INVESTORS and PEMBROOK MANAGEMENT, INC., Third-Party Plaintiffs, - against - G&G SHOPS, INC., G&G RETAIL, INC. and PETRIE RETAIL, INC., Third-Party Defendants. Notices of Motion, Affirmations & Exhibits Annexed l-2 Notices of Cross Motion, Affirmations & exhibits Annexed Affirmations in Opposition Affirmations in Partial Opposition Reply Affirmation Supplemental Affirmation...- Papers Numbered

2 Upon the foregoing papers and for the following reasons, the motion by -2- Third- Party Defendants G & G Shops, Inc., G & G Retail, Inc. and Petrie Retail, Inc. (hereinafter collectively G& G ), as well as the cross motion by Defendant Command Security Corporation ( Command ), for summary judgment dismissing the complaints against them, are granted. The motion by Plaintiff Irene Durham and the cross motion by Defendants/Third-Party Plaintiffs Corporate Property Investors ( CPI ) and Pembrook Management, Inc., for certain items of relief, are denied as moot. In March of 1997, Plaintiff Irene Durham was employed as a store manager for G & G Shops, Inc., a clothing store located in the Roosevelt Field Mall in Nassau County, New York. According to the Plaintiff, on March 27, 1997, an unidentified woman called the store and claimed that she had not received an adjustment on her credit card for an item which she had previously returned. The Plaintiff took the phone from the employee who had answered the call, identified herself as Irene, and then attempted to assist the caller, who nevertheless became irate and called the Plaintiff, among other things, a white bitch. The Plaintiff subsequently terminated the telephone conversation after the caller threatened, I ll get you. The Plaintiff did not inform the police or appraise mall security of the incident. Later that same day, the Plaintiff was on a ladder arranging a hand bag display in the middle of the store when an individual approached her from behind and inquired if she was Irene. After the Plaintiff confirmed that she was Irene, the woman - allegedly Defendant Sonette Beaufort - began hurling racial epithets at the Plaintiff and then repeatedly and violently punched and struck her. The Plaintiff called out to a nearby employee for assistance, who claims that she unsuccessfully attempted to summon a mall security guard employed by Co-Defendant

3 Command Security Corporation, who had been stationed immediately outside the rear entrance of the store. According to the Plaintiff, the security guard was positioned so that he was facing the interior of the store, but, despite the entreaties of the employee, made no attempt to intervene while the assault was unfolding. Meanwhile, the Plaintiff was able to extricate herself from her position on the ladder, but shortly after she did so, a man appeared and joined Beaufort in assaulting the Plaintiff. Ultimately, the police arrived and the two assailants were subdued and arrested. Thereafter, the Plaintiff spoke to someone whom she identified as the head of mall~security, who allegedly apologized to her, but advised her that security guards are not supposed to come into the store or put a hand on anyone in the store As. a result of the above-described incident, the Plaintiff suffered, inter alia, injuries to the cervical area of her spine as well as psychological trauma. In July of 1999, the Plaintiff commenced the within action to recover damages for personal injuries against CPI and Pembrook, the owners and managers of the mall premises, and against Command, the entity retained by CPI to provide security for the mall common areas. The complaint alleges, in pertinent part, that the above-named Defendants were duty-bound to provide security for persons lawfully therein and that the Plaintiff was violently assaulted as a result of the negligence of the Defendants in allegedly failing to provide such security, and failing to take any steps to prevent the ensuing attack. More particularly, and as amplified by the Plaintiffs, opposing submissions, her theory of recovery is predicated, in part, upon the factual assertion that the unarmed, mall security guard and another individual stationed at a nearby Mall Customer Service booth both declined to intervene even though they allegedly observed the -3-

4 assault as it unfolded. Issue was joined shortly thereafter, and CPI and Command interposed a third-party action against the store where the accident took place, G & G and its parent corporation. By Notice of Motion, returnable July 24,2001, G & G Shops move for an order granting summary judgment in their favor, pursuant to CPLR 32 12, and dismissing the NY2d 288,293- thirdparty complaint; Upon the instant application, G & G asserts that the third-party action is barred by the provisions of Worker s Compensation Law 0 11, and that the lease agreement between G & G and CPI does not support a claim for contractual indemnification arising out the factual occurrence at issue here. The Plaintiff Irene Durham moves for an order, inter alia, extending her time to file a Note of Issue to permit additional discovery. By separate Notices C ross Motion, Command and CPI and Pembrook cross-move for an order, pursuant to CPLR 3212, dismissing the complaint, all cross claims and counterclaims insofar as asserted against them. In of support of their cross motions, CPI and Pembrook and Command argue, inter alia, that they neither owed nor breached any duty of care to the Plaintiff with respect to any claims arising out of the altercation. This Court agrees. It is well settled that [llandowners in general have a duty to act in a reasonable manner to prevent harm to those on their property (D Amico v Christie, 71 NY2d 76, 85; see, Nallan v Helmsley-Spear, Inc., 50 NY2d 507, ; Basso v Miller, 40 NY2d 233,241), which duty encompasses the obligation to take minimal precautions to protect members of the public from the reasonably foreseeable criminal conduct of third parties (Burgos v Aqueduct Realty Corp., 92 NY2d 544,548; see, also, Jacqueline S. v City of New York, 8 1 4; Miller v State of New York, 62 NY2d 506, 513; Davilia v Realty Assocs., 268 AD2d 553; -4-

5 Novikova v Greenbriar Owners Corp., 258 AD2d 149,151; Pagan v 148 Jamaica Ave. Co., 248 AD2d 602,603). Nevertheless, since a possessor of land is not an insurer of the safety of those using the property, he or she cannot, even in the face of a prior history of criminal activity on the premises (Leyva v Riverbay Corp., Inc., 206 AD2d 150, 152 see, Gray v Forest Enterprises, Inc., 244 AD2d 974), be held to a duty to take protective measures unless it is shown he either knows or has reason to know from past experience that there is a likelihood of conduct on the part of third persons * * * which is likely to endanger the safety of the visitor (Nallan v Helmsley-Spear, Inc., supra, fl). at 5 19 [quoting Restatement, Torts, 2d, $ 344, Comment It is that knowledge, actual or constructive (Leyva Riverbay v Corp.; supra, at 153), that gives rise to the obligation to take precautions * * * and to provide a reasonably sufficient number of servants to afford a reasonable protection (Nallan v Helmsley-Spear, Inc., supra, at 519 [quoting Restatement, Torts, 2d, 3 344, comment fl). Significantly, there generally exists no duty to control the conduct of third persons so as to prevent them from injuring others, unless a defendant possesses authority to control the actions of such parties (see, Purdy v Public Adm r of County of Westchester, 72 NY2d 1, 8; see also, D Amico v Christie, supra, at 85; Sobers v Roth Brothers Partnership Co., 725 NYS2d 561; Alonso v Branchinelli, 277 AD2d 408, 409; Adelstein v Water-view Towers, Inc., 250 AD2d 790; Johnson v Slocum Realty Corp., 191 AD2d 613,614-5). Applying the above-cited principles to the instant matter, the Court concludes that the evidence fails to establish the existence of triable issues with respect to the alleged liability of the Defendant landowners, CPI and Pembrook, and Command. Contrary to the Plaintiffs -5-

6 contentions, there is nothing in the record which supports the conclusion that the precipitous, assaultive conduct which caused the Plaintiffs injuries was foreseeable within the meaning of the relevant authorities (Sobers v Roth Brothers Partnership Co., supra; Adelstein v Water-view Towers, Inc., supra). The record demonstrates that the incident arose when a disgruntled customer entered the store without signaling - in any discernable manner - her intent to perpetrate the violent assault which subsequently ensued. It is undisputed that, notwithstanding the fact that the Plaintiff received the telephonic threats prior to the occurrence of the assault, she failed to alert the Defendants of same or ask them for any heightened protection or security. Inasmuch as the Defendants were not put on notice of the incident, they do not appear to bear responsibility for providing additional physical protection to the Plaintiff. Nor has the Plaintiff demonstrated that existence of prior criminal activity sufficient to establish the foreseeability of the subject assault. While the Court of Appeals has emphasized that it is not necessary to demonstrate that prior criminal activity has taken place in the exact location where a subsequent incident has taken place (Jacqueline S. v City of New York, supra, at 295), the criminal activity relied upon must still be relevant to predicting the crime in question (Novikova v Greenbriar Owners Corp., supra, at 152-3). The Second Department has recently observed in this respect that to establish foreseeability, the criminal conduct at issue must be shown to be reasonably predictable based on the occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject (Novikova v Greenbriar Owners Corp., supra, at -153; Donohue v Seamans Furniture Corp., 270 AD2d 45 1). Significantly, [t]he fact that conduct is conceivable does not render it foreseeable (see, Gray v Forest Enters., Inc., supra, at 974). -6-

7 Here, the list of prior incidents produced by the Plaintiff - which primarily records instances of shoplifting and other nonviolent occurrences - does not appear to establish that the randomly perpetrated assault which occurred at bar was one which the Defendants herein could have predicted or foreseen (see, Novikova v Greenbriar Owners Corp., supra, at ; see also, Donohue v Seaman s Furniture Corp, supra; cf, Camp v Loughran, _AD2d_, 727 NYS2d 471; Sobers v Roth Brothers Partnership Co., supra)..as such, additional security or protection could not have been deemed necessary in the mall or particular store. None of the Plaintiffs additional submissions warrants a conclusion to the contrary. The Court further rejects the assertion that the Defendant Command owed a duty to the Plaintiff to intervene in the assault, or, alternatively, that the Plaintiff can be viewed as a third-party beneficiary of the security contract entered into between CPI and Command, which it should be noted, expressly prohibits security guards from performing services for, or taking direction from any merchants or stores at the Mall. Assuming - as the Plaintiff speculates - that the security guard or other Command personnel stationed outside the store allegedly observed the assault and failed to intervene, no tort liability will appear to arise therefrom. Courts have held in analogous circumstances that security personnel generally owe no common law duty to protect persons such as the plaintiff (see, Buckley v I.B.I. Sec. Ser. Inc., 157 AD2d 645; see, also, Bernal v Pinkerton s Inc., 52 AD2d 760,761, affd 41 NY2d 938; Marun v Sunrise Mall Assocs., 249 AD2d 519; Duff v Grenadier Realty Corp., 247 AD2d 577; Boltz v National Amusements, Inc., 227 AD2d 363; O Gorman v Gold Shield Sec. & Investigation, Inc., 221 AD2d 325; Abramian v Travellers Hotel Assocs. of LaGuardia, 203 AD2d 398). Moreover, the Court concludes that the Plaintiff has failed to sustain her burden -7-

8 of demonstrating her alleged status as a third-party beneficiary of the security contract between CPI and Command. It is well settled that a party seeking recovery upon a third party beneficiary theory must demonstrate that the contracting parties clearly intend[ed] to confer a direct contractual benefit on the plaintiffl] to protect [her] from physical injury (Abramian v Travellers Hotel Assocs. of LaGuardia, supra; Buckley v I.B.I. Sec. Ser. Inc., supra). Contrary to the Plaintiff S contentions, the security agreement contains no clear expression of intent to confer a direct contractual benefit upon the Plaintiff, and indeed, contains a provision which explicitly negate[s] any intent to confer contractual rights upon third parties (Abramian v Travellers Hotel Assocs. of LaGuardia, supra, at 399; Buckley v I.B.I. Sec. Ser. Inc., supra). The Court has considered the remaining contentions advanced by the Plaintiff in opposition to the Defendants motions and concludes that they are lacking in merit. Accordingly, since the record fails to establish triable issues of fact with respect to the liability of CPI, Pembrook and Command, the complaint must be dismissed insofar as asserted against these Defendants. The Plaintiffs cross motion for leave to extend her time to file a Note of Issue so as to permit a site inspection by a security expert, is denied. In light of the Court s dismissal of the primary complaint insofar as interposed against the defendants CPI, Pembrook and Command, those branches of the parties motions which relate to the third-party action are granted insofar as dismissing the third-party complaint and, otherwise, are denied as academic. The foregoing constitutes the decision, order and judgment of the Court. ENTER: Dated: Mineola, New York September 17,