The following papers numbered 1 to 16 were read on this motion by defendant, COMMON GROUND COMMUNITY HOUSING DEVELOPMENT FUND CORPORATION, INC., for an order, pursuant to CPLR 3212, granting summary judgment in favor of said defendant and dismissing the plaintiff's complaint:

Papers

Numbered

This is an action for damages for personal injuries sustained by plaintiff, Detective Jose Toala, on October 14, 2011, when plaintiff, acting within the scope and furtherance of his duties, was in the process of making an arrest of a resident in the premises of a building known as "The Lee" owned by the defendant, COMMON GROUND COMMUNITY HOUSING DEVELOPMENT FUND CORPORATION, INC. The defendant asserts that it is not liable for the Detective's alleged injuries because there is no evidence of [*2]a dangerous or defective condition on the premises and no showing of negligence on the part of the defendant or its employees or a duty owed to the plaintiff by the defendant under the circumstances of this incident.

The plaintiff commenced an action for negligence against defendant by filing a summons and amended complaint on July 2, 2012. Issue was joined by service of defendant's verified answer with affirmative defenses dated August 27, 2012. Plaintiff filed a Note of Issue on September 9, 2013. The matter is presently on the calendar of Trial Scheduling Part on July 29, 2014.

In his verified Bill of Particulars, dated September 25, 2012, the plaintiff alleges that he sustained a fractured ring finger of the right hand due to the negligence of the defendant in failing to properly train, instruct, monitor and control its agents and employees. It is claimed that the defendant failed to properly and adequately investigate the situation, failed to prevent the incident, and allowed a tenant to assault and strike the plaintiff without cause, justification and/or provocation, failed to employ sufficient and adequate personnel and employees, and failed to properly and adequately supervise its premises and property.Counsel for defendant, Melissa Nicole Girvan, Esq., now moves for an order granting summary judgment and dismissing the plaintiff's complaint on the ground that when the Detective was injured he was in the process of arresting a resident of the defendant's building and he was acting within the scope and furtherance of his duties as a police officer. Counsel contends that the factual record demonstrates that the plaintiff's allegations do not support any theory under which the defendant can be held liable for damages. The defendant asserts that it was plaintiff's actions which were taken in furtherance of a specific police function, to wit, making an arrest, that exposed plaintiff to the risk of injury.

In support of the motion, defendant's counsel, submits her own affirmation; a memorandum of law; a copy of the pleadings; a copy of the plaintiff's verified bill of particulars; a copy of the transcript of the plaintiff's examination before trial; a copy of the transcript of the examination before trial of Aaron Dobish on behalf of Common Ground Community Housing Development Fund Corporation; the plaintiff's New York City Police Department Line of Duty Incident Report; the plaintiff's pertinent medical records from Bellevue Hospital Center; the plaintiff's medical records from Susan Collura Schiliro, P.T; a copy of the Lee Building Security Incident Report; and a copy of the security [*3]call accounting log.

When they arrived at the apartment the plaintiff and his partner were invited in. The Detective told Mr. Jackson there was a report of a stolen laptop and they believed the laptop was on the premises. Mr. Jackson did not deny he was in possession of the laptop but stated that he was given permission to take it. The assistant director than stated that she did not give him permission to take the laptop. The Detectives took the suspect to the lobby of the building. At that point the suspect claimed to be having chest pains. As the plaintiff started to call for an ambulance, the suspect pushed and attempted to hit the plaintiff and tried to flee the building. The plaintiff then struck the suspect knocking him down. Plaintiff stated that while he was trying to arrest the suspect his radio fell to the ground and he was yelling to the security guards to call 911 but he stated that they were "sitting there writing in their journals." He eventually was able to arrest the suspect before the backup officers arrived. He testified that in the course of the two or three minute struggle, while defending himself, he struck the suspect in the face and sustained a fracture to his right ring finger. He testified that he also fell to the ground and hurt his left shoulder.

Plaintiff testified that during the struggle there were two security guards at the security desk. He stated that he and his partner were calling to the security guards to call 911 but he does not know if the security guards called 911. He stated that he was aware that the building houses people with mental and medical disabilities. He identified the line of duty injury report which states, "during investigation for grand larceny, I [*4]was attempting to arrest perp when perp did push me and my partner in attempt to flee, perp did cause injury to my right hand, right elbow and left shoulder." He left the scene and was taken to Bellevue Hospital by the FDNY emergency services where x-rays were taken. It was determined that he sustained a fractured right ring finger.

The provider notes contained the Bellevue Hospital Center records state that the plaintiff reported that he punched the suspect in the face and eye several times and was pushed against a wall. Similarly, the history section of the report of physical therapist Susan Schiliro, dated October 20, 2011, states that the plaintiff sustained an injury to his hand when the suspect resisted arrest and the officer punched the suspect with an upper cut to the face.

Aaron Dobish, an associate director of housing operations and programs for Common Ground Community Housing, testified at an examination before trial on July 23, 2013. He stated that Common Ground is a developer and manager of supportive housing and owns the 12 story building located at 133 Pitt Street. He stated that the building houses low income tenants, adults who have experienced homelessness, and youth who have aged out of foster care. His company receives funding from the state and federal government to build housing for people with special needs and to provide on site case management services. He stated that security for the building is provided by Allied Barton Security. He believed that the police had been called to the building more than 20 times prior to the incident for various medical emergencies. He dd not know how many times the police had been called specifically with respect to Mr. Jackson. Mr. Dobish identified an incident report prepared by Security Guard Mark Britton, who with Security Guard Wayne Beckford were on duty at the time of the incident. He obtained information about the incident from the security cameras and from the incident report. In reviewing the surveillance video he observed the two Detectives talking to Mr. Jackson in the public area or lobby of the building and they started to get in an altercation. He also stated that the video shows two security guards, Beckford and Britton standing and observing the incident. He stated that it was Assistant Director Kim Bailey who had called the police regarding the theft of the laptop.The security incident report prepared by Security Guard Britton, states that at 1228 hours NYPD arrived on site to speak with Kim Bailey about a previous incident regarding a missing laptop. At 1235 hours NYPD went upstairs to room 309 to speak with Jackson. After arriving at the apartment they brought Mr. Jackson to the lobby to inquire about the laptop. Jackson stated [*5]that he was given permission to take the laptop. Jackson tried to push his way through to get away from the Detectives. The report states that Security Guard Beckford called 911. NYPD wrestled with Jackson and placed him under arrest. The Detectives called for backup but three squad cars were already in front of the building.The call log from the front security desk telephone indicates that a call was made to 911 at 12:53 p.m.

Defendant contends that the factual record demonstrates that the plaintiff's allegations do not support any theory under which the defendant can be held liable for damages. Defendant contends that the evidence clearly shows that the plaintiff was injured when the suspect, Mr. Jackson, resisted arrest and had to be subdued. Thus, defendant states that it was an act taken in furtherance of a specific police function, the making of an arrest, that exposed the plaintiff to injury. Counsel claims that the cause of injury, a struggle with the perpetrator, is a risk associated with the particular dangers inherent in the police work and that the defendant Common Ground, owed no duty to the plaintiff in this regard. Counsel argues that even if the security guards had a duty to call 911 during the course of the struggle or at the request of the officer, the security report indicates that Security Guard Beckford called 911 and the call log shows a call was in fact made from the front security desk to 911 at 12:53 p.m. Counsel argues therefore, that there are no facts that can reasonably be interpreted to infer that any negligence on behalf of the defendant directly or indirectly was a proximate cause of the plaintiff's injuries. Further, they argue that there is no allegation that the defendant is liable under the provisions of General Municipal Law § 205-e for injuries sustained by a police officer in the line of duty as there is no allegation of a statutory violation (citing Diaz-Montez v Dore-Almonor, 96 AD3d 991 [2d Dept. 2012]).

In opposition, plaintiff claims that he was on the defendant's property at the express invitation of persons associated with Common Ground. Plaintiff asserts that the evidence shows that during the altercation in the lobby, the two security guards hired by Common Ground offered no help. Counsel claims that the testimony of the defendant indicated that there was policy in place which required staff to be present and for security staff to document the incident and attempt to address the incident if possible. Counsel asserts that the there are questions of fact raised by the evidence regarding a landlord's common-law duty to protect tenants from foreseeable harm, [*6]including third party foreseeable criminal conduct (citing Novikova v Greenbriar Owners Corp., 258 AD2d 149 [2d Dept. 2012]). Plaintff claims that to establish foreseeability, the criminal conduct in issue must be shown to be reasonably predictable based upon a prior occurrence or occurrences at the location. Counsel claims that Mr. Dobrish testified that Qydell Jackson had previous incidents that required police presence prior to October 14, 2011. Thus, plaintiff claims that Dobrish and Common Ground were aware of Mr. Jackson's proclivity to cause or create incidents within the housing project. Thus, they argue that Mr. Jackson's history of incidents necessitated Common Ground to act by terminating the tenant's lease agreement. Plaintiff argues that the defendant failed to act in any manner which would have protected other tenants, visitors police or other invitees. Thus, plaintiff contends the landlord had actual knowledge of the criminal activities which occurred and were likely to reoccur in the building and the landlords neglect gave rise to a stream of events that culminated in the officers injuries (citing Sherman v. Concourse Realty Corp., 47 AD2d 134 [2d Dept. 1075]). Plaintiff argues, therefore, that triable issues of fact exist as to whether Common Ground breached its duty to maintain minimal security measures in place and whether or not that breach was the proximate cause of the injuries plaintiff sustained herein.Upon review and consideration of the defendant's motion, plaintiff's affirmation in opposition and defendant's reply thereto, this court finds as follows:

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v City of New York, 49 NY2d 557[1980]).

To hold a defendant liable in negligence, a plaintiff must demonstrate a duty owed by the defendant to the plaintiff, a breach of that duty, and that the breach constituted a proximate cause of the injury (see Mitchell v Icolari, 108 AD3d 600 [2d Dept. 2013]; Kraut v City of New York, 85 AD3d 979 [2d Dept. 2011]; Ruiz v Griffin, 71 AD3d 1112 [2d Dept. 2010]; Ingrassia v Lividikos, 54 AD3d 721 [2nd Dept. 2008]). In making such a determination, courts look to whether the relationship of the parties is such as to give rise to a duty of care, whether the plaintiff was within the zone of foreseeable harm, and whether the accident was reasonably foreseeable (see Dance Magic, Inc. v [*7]Pike Realty, Inc., 85 AD3d 1083 [2d Dept. 2011]; Lynfatt v. Escobar, 71 AD3d 743 [2nd Dept. 2010]). In order to establish proximate cause, plaintiff must show that defendant's negligence was a substantial factor in bringing about the injury.

Here the defendant as the owner of the building had a duty to exercise reasonable care for the safety and protection of invitees to the property. However, the defendant demonstrated, prima facie, by sufficient evidence, that there were no acts on the part of the defendant or defendant's employees that breached that duty and no negligent conduct by the defendant that was a proximate cause of the plaintiff's injuries. The plaintiff clearly testified at his examination before trial that he was on the premises in order to make an arrest of the perpetrator for grand larceny. During the course of making a lawful arrest, the perpetrator attempted to flee and to resist arrest and the Detective and his partner were required to use physical force in order to subdue the subject and to make the arrest. The plaintiff made several statements after the incident that he was injured during a struggle when the perpetrator attempted to flee the premises.

The officer's line of duty injury report states that it was Mr. Jackson that caused injury to the officer's right hand, right elbow and left shoulder. Further the officer, when being treated at Bellevue Hospital told the treating physician that he punched the suspect in the face and eye several times and was pushed against a wall. Thus, it is clear from the record that the officer was injured while performing a police function, making an arrest, and it was that act which exposed the officer to risk of injury. Therefore, the sole proximate cause of the officer's physical injuries was the physical force required to be used in subduing the subject. There is no factual evidence in the record that any of the employees at Common Cause were responsible for the officer's injuries either directly or indirectly. Although the Detective testified that he asked the security guards to call 911 during the fight, the security report, as well as the telephone log records indicate that a call was in fact made to 911 from the security desk in the lobby at 12:53 p.m. exactly at the time of the occurrence.

In opposition the plaintiff has failed to raise a question of fact. The plaintiff argues that he defendant violated its common law duty to take minimal precautions to protect tenants and invitees from foreseeable harm including third party foreseeable criminal conduct. In this regard the courts have held that "a property owner, or one in possession or control of property, has a duty to take reasonable measures to control the [*8]foreseeable conduct of third parties on the property to prevent them from intentionally harming or creating an unreasonable risk of harm to others" (Jean v Wright, 82 AD3d 1163 [2d Dept. 2011] quoting Jaume v Ry Mgmt. Co., 2 AD3d 590 [2d Dept. 2003]). This duty includes protecting parties on the property from foreseeable criminal conduct by a third person (see Mason v U.E.S.S. Leasing Corp., 96 NY2d 875 [2001]; Burgos v Aqueduct Realty Corp., 92 NY2d 544 [1998]). This duty arises when there is an ability and opportunity to control such conduct, and is reasonably aware of the necessity for such control (see Jaume v. Ry Mgmt. Co., supra; D'Amico v Christie, 71 NY2d 76; Hillen v Queens Long Is. Med. Group, P.C., 57 AD3d 946 [2d Dept. 2008]; Cutrone v Monarch Holding Corp., 299 AD2d 388 [2d Dept. 2002]). However "a property owner 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'" (Jean v Wright, supra., quoting Nallan v Helmsley-Spear, Inc., 50 NY2d 507 [1980]). Here, it was not demonstrated that the defendant had a duty to protect against the unexpected assault on a police officer by Mr. Jackson (see Petras v Saci, Inc., 18 AD3d 848 [2d Dept. 2005]). The plaintiff has not substantiated his claim that the resident had prior violent incidents and has not provided any proof whatsoever that the owner had actual knowledge or should have been aware of prior criminal activities on the part of the perpetrator herein.

Therefore, for all of the above stated reasons, it is hereby,

ORDERED, that the motion by defendant, Common Ground Community Housing Development Fund Corporation, Inc, for an order granting summary judgment dismissing the plaintiff's complaint is granted and the Clerk is directed to enter Judgment accordingly.

Long Island City, NY____________________

ROBERT J. MCDONALD

J.S.C.