Upon the foregoing papers, the motion for summary judgment (No. 1042) of defendant Old Navy LLC. (hereafter "Old Navy") is denied, and the cross motion for like relief (No. 1046) of defendant Rouse SI Shopping Center, Inc. (hereafter "Rouse") is granted.

This is an action for personal injuries allegedly sustained by plaintiff while shopping at Old Navy in the Staten Island Mall. It is undisputed that the mall was owned by defendant Rouse, and that the store in question was leased and operated by defendant Old Navy. Plaintiff alleges that on April 23,2005, while she attempting to leave the store, she was struck by a belt with a large silver buckle that had been thrown by one of several young people who had been fighting inside the store for several minutes. The belt allegedly struck plaintiff in the hand (see Old Navy's Exhibit "D" pp. 25-30). It is claimed that defendants were negligent in failing to provide proper security, and for allowing the unsafe and dangerous condition posed by the altercation to persist for a considerable length time prior to plaintiff's injury.

In support of its motion for summary judgment, defendant Old Navy asserts that the criminal act of the individual who threw the belt which struck plaintiff was an intervening act and superseding cause of plaintiff's injury. According to this defendant, while it may be held liable for all of the normal and foreseeable consequences of its actions, plaintiff's injury resulted from an intervening criminal act for which it may not be cast in damages. It is familiar law that an intervening act will constitute a supervening cause and will operate to relieve a defendant of liability when it is of such an extraordinary nature or so attenuated from defendant's conduct that responsibility for the injury should not be attributed to the defendant (see Dantzler v. New York City Housing Auth 269 AD2d 420).

To make its case, Old Navy relies upon the deposition testimony of the Operations Manager of the store at the time, Kristen Almanza, who stated that about two minutes after the store manager had asked a group of six quarreling teenage girls to leave the store, three of them returned and continued to argue inside the store. The situation then escalated into the fight during which plaintiff was allegedly struck (see Old Navy's Exhibit "E" p 25). Given the speed with which the dispute erupted into a fight, Old Navy asserts that any claim by plaintiff that the attack was foreseeable or preventable is unsustainable as a matter of law.

It is well settled that landowners, 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). With particular relevance to this case, owners are also required to control the conduct of third persons on their premises when they are reasonably aware of the need for such control and have an opportunity to exercise it ( id. at 85). However, the owner of a public establishment is under no duty "to protect patrons against unforeseeable and unexpected assaults" ( Woolard v New Mohegan Diner, 258 AD2d 578, 579). [*2]

Summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue of fact ( Rotuba Extruders v Ceppos, 46 NY2d 223, 231), or where the existence of such an issue is even arguable ( Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). With this in mind, a review of the record raises several triable issues of fact which preclude dismissal of the complaint against Old Navy. For example, the length of time that elapsed between the onset of the quarrel, the ejection of the miscreants, their return to the store and plaintiff's injury remains to be determined. Clearly, there was sufficient time for Old Navy personnel to eject the quarrelsome customers in the first instance, but what is less than clear is whether, e.g., the ensuing events were properly monitored, their return to the store was reasonably foreseeable and preventable, and/or whether additional security should have been summoned to deal with the fracas (cf. Scalice v. King Kullen 274 AD2d 426). Depending on the answers to these questions, Old Navy's response to the situation may be found wanting.

In contrast, Rouse's motion for summary judgment is granted. It is a landlord's common-law duty to take minimal precautions to protect tenants and members of the public from the foreseeable criminal acts of others (see Burgos v Aqueduct Realty Corp., 92 NY2d 544; Nallan v Helmsley-Spear, Inc., 50 NY2d 507). However, an out-of-possession landlord will not be held liable for injuries occurring on its premises due to the criminal acts of others unless it retains control, or is contractually obligated to provide security (see DeLeon v Port Auth. of New York & New Jersey, 306 AD2d 146; Phillips v Sinba Assoc., 296 AD2d 389). At bar, there is no dispute that the lease with Old Navy granted Rouse only limited rights of re-entry, and did not require it to provide security inside the store (see Rouse Exhibit "E"). Moreover, plaintiff has failed to raise a triable issue as to foreseeability and whether Rouse had taken reasonable safety precautions (see Tarter v. Schildkraut, 151 AD2d 414).

Finally, plaintiff's purported reliance on the alleged violation of §§27-127 and 27-128 of Administrative Code of the City of New York is unavailing. These provisions are nonspecific in nature, and reflect only the general duty of building owners to maintain their property in a safe condition (see Ahmad v City of New York, 298 AD2d 473). As such, they do not represent an independent basis for liability (see Mansfield v. Dolcemascolo, 34 AD3d 763).

Accordingly, it is hereby

ORDERED that the motion for summary judgment of defendant Old Navy LLC is denied; and it is further

ORDERED that the motion for summary judgment of defendant Rouse SI Shopping Center, Inc. is granted, and the complaint and all cross claims against this defendant are severed and dismissed; and it is further

ORDERED that the Clerk shall enter judgment accordingly

ENTER,

_S/________________________

Robert J. Gigante,J.S.C.

DATED: September 14, 2007

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