This is an action to recover compensatory damages arising from the fatal shooting of plaintiff's decedent, Yolanda Mapp, by defendant Baydr Taylor. The shooting took place on the morning of July 17, 2011 in a parking lot adjacent to Shooter's Sports Lounge. Defendant John Doe Shareholder, is now identified as Anthony Russo and Anthony Garcia, who are the principals of defendant Shooter's Sports Lounge, Inc.; defendant ABC Security Company provided security at the lounge. Also named as defendants are the City of New York and The New York City Police Department.

The complaint sets forth four causes of action against the City of New York and the New York City Police Department (First Cause of Action); defendant Taylor (Second and Third Causes of Action); and defendants Shooter's Sports Lounge, Inc., John Doe Shareholder, and ABC Security Company (Fourth Cause of Action)—all founded on the alleged wrongful death of Yolanda Mapp.

Defendants Russo and Garcia now move pursuant to CPLR 3212 for summary judgment dismissing the complaint against them. Defendants City of New York and New York City Police [*2]Department cross move for dismissal pursuant to CPLR 3211(a)(7) and CPLR 3216 (b).^[FN1]

Plaintiffs set forth the following scenario in their Bill of Particulars:

Yolanda Mapp was a patron of defendant Shooter's Sports Lounge, Inc (hereafter "Shooter's") on July 17, 2011, when defendant Badyr Taylor (hereafter "Taylor") also came to Shooter's where he was frisked by security and found to have guns, body armor and other items ill-suited for admission to the bar. Defendant Taylor was known by all the defendants herein to have previous and recent serious weapons and drug trafficking charges and convictions against him. Shooter's had its own security employees/agents including but not limited to John Doe Shareholder (a fictitious name used herein as defendant's true name is unknown at this time)^[FN2] and/or Shooter's retained ABC Security Company (hereafter ABC Security) to provide security. John Doe Shareholder is also a shareholder of stock in Shooter's. After defendant Shooter's personnel and/or ABC Security personnel learned that defendant had deadly weapons on him, knowing that he was a known alleged gun and drug trafficker, defendants denied him admission to the bar, but allowed him to loiter about the outside of the premises and its adjacent grounds rather that taking appropriate measures to ensure that he left. Taylor continued to loiter about the premises and soon thereafter discharged a firearm into the face of Yolanda Mapp (hereafter "decedent") causing her mortal injuries that she consciously suffered from until she died on July 18, 2011, at approximately 6:25 a.m. with her brother plaintiff Dale Mapp in close proximity and present at the scene of the shooting.

In moving for summary judgment, defendants Russo and Garcia argue that (1) as the sole shareholders of the corporation they are shielded from personal liability; (2) they did not owe a duty to decedent; and (3) any negligence on their part was supeseded by the intervening criminal act of defendant Taylor.

That portion of the motion of defendants Russo and Garcia that seeks summary judgment based on their status as shareholders is denied. The individual defendants are not being sued here as shareholders, a status that, arguably would relieve them of personal liability. Rather, they are sued here for their alleged individual acts, taken on the night of the shooting, that are alleged to have been a substantial factor in plaintiff's injury. While plaintiffs inartfully designate movants as "John Doe Shareholder[s]" in the Complaint, the context and wording of the pleadings (including paragraph 6 of the Complaint and the above-quoted excerpt from the Bill of Particulars) make it abundantly clear that the claims are against the movants in their individual capacity, not as shareholders of the corporate defendant. It is in this capacity—as alleged tortfeasors—that their negligence, if any, must [*3]ultimately be addressed.

Viewed in that light, the balance of defendants' motion also must be denied. It is not disputed that defendants Russo and Garcia are officers and employees of the corporation. Defendant Russo admittedly was at the premises on the night of the shooting and had some control and direction over security (see exhibit E to the Affirmation in Opposition of Frank A. Della Donne dated November 20, 2013), and defendant Garcia has not submitted an affidavit in support of the motion.

Both corporate employees and officers of the corporation owe a duty of care as individuals apart from any duty owed by the corporation. This obligation includes a duty to refrain from causing injury to others and to avoid creating the conditions that present an unreasonable risk of injury to third parties. Thus, a corporate officer is individually liable for injury to a third party when the corporation owes a duty of care to the third person, the corporation delegates that duty to the officer, the officer breaches that duty through personal fault, and the officer's breach of that duty is a substantial factor in causing the injury ("A corporate officer who participates in the commission of a tort, regardless of whether he acts on behalf of the corporation and in the course of his corporate duties, may ordinarily be held individually liable" [LaLumia v. Schwarts, 23 AD2d 668, 669 (2nd Dept 1965)] compare Archie v. Ma's & Papa Joe's, Inc., 70 AD3d 985, where the corporate officer had no involvement in the acts leading to the injuries of a patron allegedly assaulted by another patron, thus precluding imposition of liability on the officer in the patron's action to recover damages for assault and battery).

Here, then, to the extent the corporate defendant owed a duty to third parties to keep safe the premises and the areas under its control, it cannot be gainsaid that the individual defendants are also so charged.

In this regard, the proprietor of a bar is not an insurer of its patrons' safety against third-person criminal attacks. However, it is liable for failure to protect its patrons from foreseeable third-person assaults. Under the circumstances of this case, the test is whether defendant should have reasonably anticipated either a risk of harm to Mapp or a threat of harm posed by Taylor (see e.g. Aminov v. East 50th St. Rest. Corp., 232 AD2d 592, 593 [1996], lv denied 89 NY2d 815 [1997]). Without the requisite awareness, there is no duty ("The risk reasonably to be perceived defines the duty to be obeyed," [Palsgraf v. Long Isl R.R. Co., 248 NY 339, 344 (1928)]), regardless of the manner or extent of that harm.

At its present pre-discovery stage, this action presents questions of fact as to whether violent conduct by Taylor had been foreseeable, giving rise to some duty on movants' part. Taylor was turned away at or near the entrance to Shooter's, and there is some question whether his character and reputation was general knowledge among the patrons and the proprietors. Thus, the circumstances leading up to the assault raise questions regarding defendants' perception of a risk of harm (compare Crowningshield v. Proctor, 31 AD3d 1001 [3rd Dept 2006], involving an unanticipated and unforeseeable altercation at a house party).

Moreover, given these circumstances, whether the criminal acts of defendant Taylor constituted a superseding cause that so attenuated the alleged negligence that the imposition of liability would be unreasonable presents a question of fact that precludes summary judgment (see Timoshenko v. Airport Auto Group, Inc., 95 AD3d 1299,1301 [2nd Dept 2012]).

Finally, that the assault occurred in the parking lot immediately adjacent to the building in which the bar was located is of no moment, given the common-law duty of an establishment's [*4]proprietor to adequately supervise and control the area where its supervision and control might reasonably be expected (see Lippman v. Hines, 138 AD2d 845, 846 [3rd Dept 1988]).

A defendant may be liable for injuries that occur on the defendant's property, or in an area under the defendant's control, where the defendant had the opportunity to exercise control and was reasonably aware of the need for such control (Holiday v. Poffenbarger, 110 AD3d 841, 844 [2nd Dept 2013]). Here, defendants clearly had a duty to act in a reasonable manner to control conduct that it had the opportunity to control and of which it was reasonably aware (Marianne OO v. C & M Tavern Inc., 180 AD2d 998, 999 [3rd Dept 1992]).

The Court rejects movants' contention that by refusing Taylor entry to the bar, they fulfilled their common law duty to keep the premises they owned or controlled reasonably free of known dangerous conditions. The attack upon plaintiff occurred in the adjoining parking lot, which was not owned by the corporation. However, pursuant to its lease, the corporation "at all times [had] the non-exclusive right, together with the other tenants and occupants of the building, to use the parking area and driveway appurtenant thereto for the purpose of ingress and egress." The adjoining parking lot provided convenient, available parking space for Shooter's patrons and apparently was regularly used by its patrons both to park and to congregate.

Reasonable questions of fact thus exist as to (1) whether the parking lot was under Shooter's effective control and was used as part of its premises, and (2) whether management had assumed an obligation to protect patrons using the lot. If established, such combination of factors might well justify the extension of a duty of care to patrons in the lot (see e.g. Lippman v. Hines, 138 AD2d at 846) and also distinguishes this case from those which exonerate barkeepers, as a matter of law, from liability for injuries that occur at places remote from the bar's premises (see e.g. Dugan v. Olson, 74 AD3d 1131 [2nd Dept 2010], where the incident occurred two blocks away and there was no causal connection between the bar owner's service of alcohol and the later assault).

Cross Motion to Dismiss (Motion Sequence 005).

Plaintiffs' claim against defendants the City of New York and The New York City Police Department sounds in negligence arising from their failure "to provide minimal precautions and exercise judgment that is professional and reasonable to protect the public from defendant Taylor as harm was imminent based upon his previous and known arrest record with serious gun and drug trafficking charges" (First Cause of Action ¶ 20).

More specifically, plaintiffs allege in their Notice of Claim:

The shooter, BADYR TAYLOR, has a history of violent criminal offenses, including assault with a firearm, gun and drug trafficking, and parole violations. On May 24, 2011, BAYDR TAYLOR was arrested by THE NEW YORK CITY POLICE DEPARTMENT on felony drug charges. However, although TAYLOR had a prior history of gun violence, THE NEW YORK CITY POLICE DEPARTMENT and THE CITY OF NEW YORK failed to search his home and/or belongings for such weapons.

. . . [T]hese respondents were careless and negligent in their investigation and/or search of BADYR TAYLOR and/or his belongings following the May 24, 2011 arrest. That said carelessness and negligence by the defendants caused BAYDR TAYLOR to be armed and dangerous on July 17, 2011, thus allowing him to shoot YOLANDA MAPP.

The sine qua non of any claim sounding in negligence is the breach of a duty owed. [*5]

It is well-settled that " [t]o sustain liability against a municipality, the duty breached must be more than that owed the public generally'" (Valdez v. City of New York, 18 NY3d 69, 75 [2011])

Under this "public duty rule," here implicating the provision of police protection to the general public rather then decedent specifically,'because plaintiff[s] cannot point to a duty owed to [decedent] . . ., [their] negligence claim must fail" (Lauer v. City of New York, 95 NY2d 95, 101 [2000]).

In addition, "[a] public employee's discretionary acts—meaning conduct involving the exercise of reasoned judgment—may not result in the municipality's liability" even were the conduct negligent (Lauer v. City of New York, 95 NY2d at 99). Here, both the discretionary nature of the police activity as related in the Notice of Claim and its tenuous link to the claimed injury warrant dismissal of the complaint as against the City of New York and The New York City Police Department.

Accordingly, it is

ORDERED that the motion of defendant John Doe Shareholder for summary judgment dismissing the complaint as against Anthony Russo and Anthony Garcia is denied in all respects; and it is further

ORDERED that the cross motion of The City of New York and The New York City Police Department for dismissal of the complaint as against them is granted; and it is further

ORDERED that the clerk shall enter judgment accordingly.

ENTER

Dated:March 28, 2014___/s/_________________________

HON. THOMAS P. ALIOTTA

J.S.C.