In this personal injury negligence action, defendants Kings Plaza Shopping Center and Marina, Kings Plaza Security, Alexander's Kings Plaza Center, Inc. and Vornado Realty Trust move for summary judgment and dismissal of plaintiff's complaint, pursuant to CPLR Rule 3212. The issue is whether the defendants - the owner and operators of the Kings Plaza Mall and their security company - owe a duty of care to an injured third-party, the manager of tenant Kay Bee Toy Store, for a sudden attack upon her person by an unruly customer, on Christmas Eve, 2001. It is clear from the evidence that defendants did not owe any duty to plaintiff. Therefore, defendants' motion is granted and the case is dismissed.

On the day of the incident, December 24, 2001, plaintiff, Janil Bowler, was the [*2]

Senior Assistant Manager at the Kay Bee Toy Store at the Kings Plaza Shopping Center, located at 5100 Flatbush Avenue, Brooklyn, New York. It is uncontroverted that Christmas Eve is one of the busiest shopping days of the year, especially for a toy store. Because of the heavy volume of customers trying to enter the store that day, and to comply with the local building code, customer access to the store was regulated by Kay Bee employees. Nylon ropes and stanchions, similar to that used in banks or nightclubs, were used to have Kay Bee customers form a line outside the store, in the common area of the mall.

Plaintiff, Kay Bee's senior employee on duty, supervised the entry of customers into the Kay Bee store, with other Kay Bee employees and a security guard employed by Kay Bee. At approximately 5:15 P.M., while plaintiff was standing in the store, at its front entrance [exhibit D - plaintiff's EBT, page 119], adjacent to the common area of the mall, a male customer approached her and requested a red fire truck. He was standing near her, but in the common area of the mall [plaintiff's EBT - page 120]. Plaintiff described the incident in her EBT, at page 111, line 22 - page 112, line 17, as follows:

Customer came, requested a red fire truck, told him that they

were sold out, they have been sold out since September 11th, we do

not have any. He requested to enter the store, and I explained to him

politely that I was not permitted to do so because we had a large crowd

waiting to enter the store and they had been waiting there for quite some

time. He replied to me, "I just want to see for myself if you had it."

I told him, "Sir, I do not have any, but if you would like to come and

see you would have to wait on the line." He got very upset, began to yell

and I told him, "Sir, please calm down, there are children here." He

started using profanity. Once again I told him to calm down and he got

louder and louder. He approached the front of the store, came

directly toward myself and the staff, louder and louder. He took

a swing, punched me in the stomach, I doubled over, lost my breath.

[Emphasis added]

Plaintiff stated that Kay Bee's security guard and other Kay Bee personnel did not do anything to physically protect her from the assailant's punch [plaintiff's EBT - pages 124 -126]. She said that a Kings Plaza security guard, Sergeant Joseph Mazza, who was outside the Kay Bee store, observed the incident and two unidentified Kings Plaza security guards apprehended the perpetrator, and then released him. Kings Plaza security, including Sergeant Mazza, and two New York City police officers came into the store to take information from plaintiff. Plaintiff admitted, in her EBT, that Sergeant Mazza never told her that he saw her get punched in the stomach [plaintiff's EBT, pages 209 - 210], and she doesn't recall if she ever asked Kings Plaza Security for the opportunity to fill out an incident report [plaintiff's EBT, pages 210 - 211].

Plaintiff, at pages 115 -116 of her EBT, admitted that neither she nor anyone at the Kay Bee store had seen her assailant before or after the day of the incident.

Plaintiff, at pages 232 - 234 of her EBT, identified the Kings Plaza Shopping Center and Marina Tenant Information Handbook [exhibit K of motion], and stated that it was used by Kay Bee with respect to operation of the toy store and a copy of the document was kept in the store. The Handbook states in the section entitled "Security," at page 6: [*3]

Each Tenant is responsible for security and other related problems

within their store.

Due to State Laws, Local Procedures and Constitutional Restraints,

the Mall's Security is not allowed to arrest and detain suspects unless

they have actually witnessed the crime.

Mall Security, will, in certain instances, assist a Tenant if ALL of the

following requirements are met:

•The store's personnel actually witnessed the crime.

•The store's personnel must be prepared to approach

and accuse the individual of the crime and detain the

suspect. Mall security will stand by only to assist if it

becomes necessary.

•Tenant's representative will Sign Kings Plaza Release

Form.

•The store must be prepared to prosecute the case and

press charges (not just regain lost property) and notify

the police.

•The suspect must be detained in the store's premises.

After meeting all of the above requirements, suspects detained due to

tenant complaints, shall be detained in Tenants Premises while awaiting

the arrival of Police.

NOTE: Tenant Stores employing their own security Personnel shall

utilize their security for apprehensions and detentions.

In order to comply with the New York State laws regarding civilian

arrests Kings Plaza Security MAY NOT APPREHEND SUSPECTS

that have fled Tenant stores unless all the above requirements have

been met and such Tenant actually who witnessed the crime committed

accompanies Kings Plaza Security Officer in order to make positive

identification and effect the arrest.

NOTE: There shall be no exception to this policy. [Emphasis added]

Plaintiff, in her EBT, confirmed that Robert Villanueva, Kay Bee's District Manager, told her than each tenant was responsible for security and related problems within their store and that mall security, will, in certain instances, assist the tenants if the procedures in the Handbook were followed [plaintiff's EBT - pages 35 - 37]. Further, she states that Mr. Villanueva instructed her to call mall security and himself for assistance in an emergency [plaintiff's EBT - page 38].

Plaintiff testified, in her EBT at pages 38 - 39, that she was given a copy of the lease [exhibit G of motion] between the landlord mall and the tenant Kay Bee. The lease states in Article V, Section 5.1, at pages 10 - 11, that the "Landlord shall operate, manage, equip, police, light, repar and maintain the Common Area for their intended purposes in such manner as Landlord in its sole discretion shall determine."

Lieutenant Michael Joseph of Kings Plaza Security was deposed [exhibit E of motion]. He testified, at page 113, line 15 - page 114, line 2 of his EBT, as follows:

Q.In between the day you started working at Kings Plaza Mall [*4]

some time in 1990 and December 24, 2001, was it the custom and

practice of the Kings Plaza Mall to issue all of the tenants in the mall

a handbook each year?

A.Yes.

Q.Just for clarification purposes, is Defendants Exhibit F a copy

of the Tenant Information Handbook that was in force and effect on

December 24, 2002 for the Kay Bee store?

A.Yes.

Further, Lt. Joseph testified, at page 114, line 15 - page 115, line 23 of his EBT:

Q.As of December 24, 2001, did the Kings Plaza Mall have a set

of criteria in place by which tenants could obtain the assistance of the

Kings Plaza Mall security for any incident or situations arising within

their leased space?

A.Yes.

Q.What was the procedure?

A.We come to a scene of the store, you sign my AssistantSheet

asking for my assistance. You have to answer the three questions, did

you see the crime, do you want to press charges and you don't want just

your merchandise back. A lot of people just want the merchandise back

and that's it. We ask three questions.

Q.On December 24, 2001, did the Plaintiff, Janil Bowler, ask you

to sign a release form?

A.No

Q.Is the conditions that you just described contained within the

Tenant Information Handbook effective for December 24, 2001?

A.Yes.

Q.What page or pages is than contained on?

A.It's on Page 6 of the Tenant Handbook, Page 6 and Page 7.

Q.Did any Kings Plaza Security officers ever tell you that the

Plaintiff, Janil Bowler, asked to sign a Kings Plaza release form?

A.No.

The following colloquy took place at page 116, lines 2 - 12 of Lt. Joseph's EBT:

Q.As of December 24, 2001, did any of the Kings Plaza Mall

Security officers have any obligation to provide security for the

interior of a tenant's leased space?

A.No.

Q.Who, if anyone, would be responsible to provide security

within the confines of the Kay Bee Store at the Kings Plaza Mall on

December 24, 2001?

A.They have to provide their own security in the tenant's space.

Lt. Joseph testified in his EBT, at pages 57 - 58, that the plaintiff did not prepare an assistance sheet as per the Tenant's Handbook procedures. Further, Lt. Joseph described his conversation with the plaintiff at the Kay Bee store, after she called for assistance on the day of [*5]the incident, at page 64, line 7 - page 65, line 20, as follows:

Q.During that period of time, just to clarify, what actions, if any,

did you take while you were inside of the store?

A.I proceeded to ask her questions on the incident.

Q.Were the results of those conversations incorporated into your

report?

A.Yes.

Q.At any time did she direct your attention to an individual she

said assaulted her, did she say, "That's the guy who hit me"?

A.No.

Q.To you knowledge, did she ever identify to Sergeant Mazza the

individual who she says assaulted her?

A.No.

Q.To your knowledge, did the Plaintiff ever identify to any of the

other security personnel who were at the location the identity of the

assailant?

A.No.

Q.Do you know that she did not or you do not know whether she

did?

A.It would have been in the report. The Assistant Sheet would

have been signed, we would have detained the individual until P.D.

came.

Q.If a person is identified to you as an assailant at one of the

stores in the mall, what is standard procedure as to detaining the

individual, if any?

A.After you sign an Assistant Sheet, we help detain the individual

on the premises of the stores. We don't bring him to our office, we

bring him to the back of your store.

Q.To your knowledge, was an individual detained at the store?

A.No

Lt. Joseph also testified, at page 106 of his EBT, that plaintiff never told him on the day of the incident that Sergeant Mazza or any other Kings Plaza security officers actually saw her being assaulted.

The proponent of a summary judgment motion must make a prima facie showing

of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. (Matter of Redemption Church of Christ v Williams, 84 AD2d 648, 649 [3d Dept 1981]; Greenberg v Manlon Realty, 43 AD2d 968, 969 [2d Dept 1974]; Winegrad v New York University Medical Center, 64 NY2d 851 [1985]). [*6]

CPLR 3212 (b) requires that for a court to grant summary judgment the court must

determine if the movant's papers justify holding as a matter of law "that there is no defense to the cause of action or that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. (Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990]). Once the movant has established his or her prima facie case, the party opposing a motion for summary judgment bears the burden of "produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact . . . mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York, supra at 562; see also Romano v St. Vincent's Medical Center of Richmond, 178 AD2d 467, 470 [2d Dept 1991]; Tessier v New York City Health & Hospitals Corp., 177 AD2d 626 [2d Dept 1991]). Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. (Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065 [1979]).

In a negligence action, "a court is always required to undertake an initial

evaluation of the evidence to determine whether the plaintiff has established the elements necessary to a cause of action in negligence, to wit: (1) the existence of a duty on defendant's part as to plaintiff; (2) a breach of this duty; and (3) injury to the plaintiff as a result thereof. (See Prosser, Torts [4th ed.], § 30, p. 143.)." (Akins v Glens Falls City School Dist., 53 NY2d 325, 333 [1981]). Defendants argue in their instant motion for summary judgment and dismissal of plaintiff's complaint that they owed no duty to the alleged injured employee of tenant Kay Bee. "The existence and scope of an alleged tortfeasor's duty is, in the first instance, a legal question for determination by the court (see Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 585)." (Di Ponzio v Riordan, 89 NY2d 578, 583 [1997]). (See Sanchez v State of New York, 99 NY2d 247, 252 [2002]). "Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party." (Espinal v Melville Snow Contractors, Inc., 98 NY2d 136, 138 [2002]).

Plaintiff Bowler's causes of action lack merit. None of the tortfeasors owe any duty of care to plaintiff. Plaintiff's employer, Kay-Bee, had a contractual relationship, through its lease, with defendants. Plaintiff had no contractual relationship with any defendants. The Court of Appeals, in Espinal, analyzed the parameters of the duty of care owed by contractors to third parties, noting at 138, that "[u]nder our decisional law a contractual obligation standing alone, will generally not give rise to tort liability in favor of a third party." The Espinal Court, at 140, identified:

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 persons: (1) where the contracting

party, in failing to exercise reasonable care in the performance of

his duties, "launche[s] a force or instrument of harm" (Moch [H.R.

Moch Co. v Rensselaer Water Co., 247 NY 160 (1928)]; (2) where [*7]

the plaintiff detrimentally relies on the continued performance of the

contracting party's duties (see Eaves Brooks [Eaves Brooks Costume

Co. v Y.B.H. Realty Corp., 76 NY2d 220 (1990)] 27 NY2d at 226);

and (3) where the contracting party has entirely displaced the other

party's duty to maintain the premises safely (see Palka, 83 NY2d

at 589). These principles are firmly rooted in our case law, and have

been generally recognized by other authorities (see e.g. Restatement

[Second] of Torts § 324A).

Plaintiff's claim fails as a matter of law. Defendants certainly didn't launch the fist of the unknown perpetrator, the "force or instrument of harm," and plaintiff has failed to demonstrate that she detrimentally relied upon the performance of defendants to provide security. Lastly, defendants have not displaced Kay Bee's duty to provide security in its leased premises. Defendants did not have a contractual duty to protect plaintiff, who testified that she was inside Kay Bee's leased premises when the incident occurred. The lease between Kings Plaza and Kay Bee, [exhibit G of motion] as previously noted, in Article V, Section 5.1, states that the "Landlord shall . . . police . . . the Common Area for their intended purposes in such manner as Landlord in its sole discretion shall determine." Further, the Kings Plaza Shopping Center and Marina Tenant Information Handbook [exhibit K of motion], a document that plaintiff testified about in her EBT, and used by Kay Bee, states in the beginning of the Security section, at page 6, "[e]ach Tenant is responsible for security and other related problems within their store." Further, in that section, it states "NOTE: Tenant Stores employing their own security Personnel shall utilize their security for apprehensions and detentions." Lt. Joseph testified, in his EBT, that tenants have the obligation to provide security within their leased space, not defendants. Plaintiff testified in her EBT that Kay Bee's security guard, after the incident, never apprehended and detained the man who punched plaintiff in the stomach.

Further, at common law, when a criminal act in unforeseeable, such as the assault on the plaintiff in the instant case, the owner of the premises has no duty to protect persons from attack. The Court of Appeals, in Nallan v Helmsley-Spear, Inc., (50 NY2d 507, 519 [1980]), held that:

a possessor of land, whether he be a landowner or a leaseholder, is

not an insurer of the visitor's safety. Thus, even where there is an

extensive history of criminal conduct on the premises, the possessor

cannot be held to a duty to take protective measures unless it is shown

that 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" (Restatement,

Torts 2d, § 344, Comment f). Only if such conditions are met may

the possessor of land be obliged to "take precautions . . . and to [*8]

provide a reasonably sufficient number of servants to afford a

reasonable protection.

Plaintiff, in opposition to the instant motion, fails to demonstrate that defendants knew or had "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'" plaintiff. (See Maheshwari v City of New York, 2 NY3d 288 [2004]; Burgos v Aqueduct Realty Corp., 92 NY2d 554 [1998]; Logan v 530 West 28th St., L.P., 48, AD3d 430 [2d Dept 2008]; Marr v Seventh Day Adventist Church, 29 AD3d 959 [2d Dept 2006]; Dillman v Bohemian Citizens Benevolent Soc. Of Astoria, Inc., 227 AD2d 434 [2d Dept 1996]).

Recent appellate decisions have consistently held that there is no duty to protect a third-party crime victim when a lease fails to establish a contractual duty on a landlord to provide security within a tenant's space and criminal activity is unforeseeable. Thus, without the existence of any triable issues of fact, summary judgment is appropriate.

In Charleen F. v Cord Meyer Development Corp. (212 AD2d 572 [2d Dept 1995]), a crime victim, the employee of a store in a mall, was raped at gunpoint in the store during a robbery. Plaintiff's employer had a lease with the defendant mall owner, requiring the landlord to patrol and police the shopping center's parking area. The employee sued the mall owner and its security company for its failure to protect her from the attack. The Court held:

Here, the lease agreement did not create a contractual duty upon the

defendants to patrol the inside of the store where the crime occurred.

Furthermore, the plaintiff failed to establish that the defendants had

reason to know from past experience that there was a likelihood that

a store employee or customer would be attacked by a third party or

would be endangered (see, Nallan v Helmsely-Spear, Inc., 50 NY2d

507, 519). The Supreme Court properly granted the defendants' motions

for summary judgment dismissing the complaint, as the plaintiff failed

to demonstrate the existence of a triable issue of fact (see, Zuckerman v

City of New York, 49 NY2d 557, 560).

(See Dabbs v Aron Security, Inc., 12 AD3d 396 [2d Dept 2004]; Sepulveda v Empire of Hempstead, LLC, 6 AD3d 603 [2d Dept 2004]; Mirza v Metropolitan Life Insurance Co., 2 AD3d 808 [2d Dept 2003]; Durham v Beaufort, 300 AD2d 435 [2d Dept 2002]; Haston v East Gate Security Consultants, Inc., 259 AD2d 665 [2d Dept 1999]; Duff v Grenadier Realty Corp., 247 AD2d 577 [2d Dept 1998]; Harper v Wells Fargo Guard & Investigative Services, Inc., 226 AD2d 345 [2d Dept 1996]; Buckley v I.B.I. Security Service, Inc., 157 AD2d 645 [2d Dept 1990]).

Plaintiff has failed to present any evidence to rebut defendants' prima facie showing that defendants owed not contractual or common law duty to protect plaintiff from her Christmas Eve, 2002 assault at the Kay Bee Toy Store, located within the Kings Plaza Mall. Therefore, [*9]summary judgment is granted to defendants and the instant action is dismissed.

Conclusion

Accordingly, it is

ORDERED, that the motion of defendants Kings Plaza Shopping Center and Marina, Kings Plaza Security, Alexander's Kings Plaza Center, Inc. and Vornado Realty Trust for summary judgment and dismissal of plaintiff's complaint, pursuant to CPLR Rule 3212, is granted.

This constitutes the Decision and Order of the Court.

ENTER

_________________________

HON. ARTHUR M. SCHACKJ. S. C.