Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of defendants the City of New York, the City of New York s/h/a New York City Department of Homeless Services and FJC Security Services, Inc., filed on November 20, 2018, under motion sequence six, for an order pursuant to CPLR 3212 granting summary judgment in their favor dismissing plaintiff Kevin Credle's complaint and all cross claims asserted against them. This motion is opposed by the plaintiff.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of defendant Services for the Underserved, filed on November 21, 2018, under motion sequence seven, for an order pursuant to CPLR 3212 granting summary judgment in its favor. This motion is opposed by the plaintiff.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of cross motion of Credle filed on June 21, 2019, under motion sequence eight, for an order: (1) striking the answer of the defendants, or in the alternative, (2) permitting plaintiff to conduct further discovery post note of issue; and (3) granting an award of sanctions and costs. The motion is opposed by the defendants.

On May 20, 2015, plaintiff Kevin Credle (hereinafter Credle or plaintiff) commenced the instant action against defendants, the City of New York, New York City Department of Homeless Services (hereinafter the City defendants), Services for the Underserved (hereinafter SUS), FJC Security Services, Inc. (hereinafter FJC), and Michael Smith (hereinafter Smith), to recover damages for personal injuries by electronically filing a summons and verified complaint [*2]with the Kings County Clerk's Office (hereinafter KCCO).

FJC interposed a verified answer with cross claims dated June 8, 2015. FJC's interposed cross claim against the City defendants, SUS and Smith for contribution and against SUS for contractual indemnity.

SUS interposed a verified answer with cross claims dated June 5, 2015. SUS has plead two cross claims against FJC for contribution and for common law indemnity.

The City defendants interposed a joint answer and a cross claim dated June 19, 2015. The City defendants cross claim was against SUS, FJC and Smith for contribution. On April 4, 2018, plaintiff filed the note of issue with the KCCO. By order of this Court dated July 27, 2018, the deadline for moving for summary judgment was extended to November 20, 2018.

The plaintiff's verified complaint contains fifty-six allegations of fact to support five denominated causes of action: (1) negligence, (2) negligent hiring, (3) negligence under New York state law, (4) vicarious liability of the City defendants, SUS and FJC and (5) failure to intervene pursuant to 42 USC § 1983.

Plaintiff's verified complaint, verified bill of particulars and supplemental bill of particulars allege the following salient facts. On May 25, 2014, Credle, a resident of the Blake Avenue Homeless Shelter operated by SUS, alleges that he sustained injuries when Michael Smith, a shelter resident, physically assaulted him in the room they shared at the shelter. Credle further alleges that the City defendants, SUS and FJC's negligence caused him to sustain injuries.

Credle's testimony describes the incident as follows. On the date of the incident, Credle had resided at the Blake Avenue Shelter (hereinafter the shelter) operated by SUS for almost two months. He was assigned to sleep in a room on the second floor of the facility with other male residents. At approximately 12:50 a.m., Credle and another roommate observed Smith, a new resident, begin to smoke drugs, which is against SUS's policies. Credle believed the drugs to be PCP. Due to the drug's foul odor, among other things, Credle and his roommate stepped into the hall with the intention of reporting Smith's drug use to an FJC security guard. However, Credle was unable to find a security guard on his floor. After some time, they returned to the room where Credle contends that Smith attacked him without provocation.

On November 20, 2018, the City defendants and FJC jointly filed a notice of motion, under motion sequence six, seeking dismissal of the plaintiff's complaint and the cross claims asserted against them pursuant to CPLR 3212. On November 21, 2018, SUS also filed a notice of motion, under motion sequence seven, seeking dismissal of the plaintiff's complaint pursuant to CPLR 3212. The plaintiff has opposed both motions.

The City defendants and FJC's motion papers consist of a notice of motion, an affirmation of the City defendants' counsel, eleven annexed exhibits labeled A through K, and a memorandum of law. Exhibit A is an affidavit of Cindy Teta (hereinafter Teta), an Assistant Commissioner of NYC Department of Homeless Services. Exhibit B is a copy of plaintiff's summons and verified complaint. Exhibit C is the verified answer of Services for the Underserved. Exhibit D is the verified answer of FJC. Exhibit E is the answer of the City of New York and the City of New York s/h/a New York City Department of Homeless Services. Exhibit F is a copy of the Note of Issue. Exhibit G is plaintiff's verified bill of particulars and supplemental verified bill of particulars. Exhibit H is a copy of the deposition testimony of [*3]Kevin Credle, dated May 26, 2016. Exhibit I is described as correspondence regarding the defendant's depositions. Exhibit J is the deposition testimony of Adolphus Quinton, FJC Security Services, Inc. representative, dated September 7, 2018. Exhibit K is a copy of an order of this Court dated in July 27, 2018, extending the time to move for summary judgment to November 20, 2018.

SUS's motion papers consist of an affirmation of counsel and twenty-one annexed exhibits labeled A through U. Exhibit A is a copy of plaintiff's summons and verified complaint. SUS's exhibit A is a duplicate of the City defendants' exhibit B. Exhibit B is the verified answer of FJC. Exhibit C is the answer of the City of New York and the City of New York s/h/a New York City Department of Homeless Services. Exhibit D is the verified answer of SUS. Exhibit E is SUS's answer to cross claims asserted by FJC. Exhibit F is a copy of plaintiff's verified bill of particulars. Exhibit G is a copy plaintiff's supplemental verified bill of particulars. Exhibit H is a 50 H hearing transcript of Kevin Credle dated August 7, 2014. Exhibit I is the deposition transcript of Kevin Credle dated May 26, 2016. Exhibit J is the deposition transcript of Adolphus Quinton dated September 7, 2018. Exhibit K is a copy of the Preliminary Conference Order. Exhibit L is a copy of the Compliance Conference Order, dated September 8, 2016. Exhibit M is an Order dated November 3, 2017. Exhibit N is the Note of Issue. Exhibit O is is a copy of an Order of this Court dated in July 27, 2018, extending the time to move for summary judgment to November 20, 2018. Exhibit P is the NYC Department of Homeless Services Incident Report. Exhibit Q is the lease between Blake Holdings LLC and SUS. Exhibit R is a contract between the Department of Homeless Services and SUS. Exhibit S is a copy of a service agreement between SUS and FJC. Exhibit T is described as correspondence regarding the defendants' depositions. Exhibit U is an affidavit of Derrick Williams, an SUS Residential Aide.

The plaintiff's opposition papers consists of an affirmation of counsel and a memorandum of law.

Plaintiff's complaint and bill of particulars has alleged the following facts among others. The City defendants operated, maintained and controlled a homeless shelter that contracted with a third party to supervise and manage the shelter. Among the parties hired to manage the shelter was SUS. FJC was also hired to provide security services at the shelter.

By notice of motion the City defendants and FJC have jointly moved to dismiss the complaint and all cross claims asserted against them on the basis that they owe no duty of care to the plaintiff. Their affirmation in support of the motion, however, does not mention or offer any argument in support of that branch of the motion seeking dismissal of the cross claims asserted against the City defendants. In fact, it only addresses the two cross claims interposed by SUS against FJC for contribution and for common law indemnity.

It is well settled that in order to be entitled to summary judgment, the movant 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 (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). Once a defendant makes a prima facie showing, the burden shifts to the plaintiff to raise an issue of fact requiring a trial (see Valley Ventures, LLC v Joseph J. Haspel, PLLC, 102 AD3d 955, 956 [2nd Dept 2013]).

It is well settled that property owners and occupiers owe a duty of reasonable care under the circumstances to keep their premises safe (see Basso v Miller, 40 NY2d 233, 240—241 (1976); see also Malley v Alice Hyde Hosp. Assn., 297 AD2d 425 [3rd Dept 2002]). Although a jury determines whether and to what extent a particular duty was breached, it is for the court first to determine whether any duty exists, taking into consideration the reasonable expectations of the parties and society generally (Tagle v Jakob, 97 NY2d 165, 168 [2001]). The scope of any such duty of care varies with the foreseeability of the possible harm (Id.). The issue of foreseeability is normally a question of fact for a jury, but it is a question of law when but a single inference can be drawn from undisputed facts (see Elwood v Alpha Sigma Phi, 62 AD3d 1074, 1076 [3rd Dept 2009]; citing Hendricks v Lee's Family Inc., 301 AD2d 1013 [3rd Dept 2003]; Hessner v Laporte, 171 AD2d 999 [3rd Dept 1991]).

The City defendants and FJC's have offered, among other things, an affirmation of counsel and an affidavit of Tera, an Assistant Commissioner in the Adult Services Division of the New York City Department of Homeless Services, to support their contention that they owe no duty to the plaintiff. The affirmation of counsel does not assert personal knowledge of any of the allegations of fact alleged in the complaint or in their respective answers and, therefore, is not evidence of any of the matters asserted in those pleadings (see Brusco v Braun, 199 AD2d 27 at 31—32 [1st Dept 1993]).

The City defendants and FJC claim that based on Tera's affidavit, among other things, the plaintiffs cannot establish that they owe him a duty of care. Tera's affidavit avers that SUS was responsible for the daily operations and the running of the Blake Avenue Homeless Shelter pursuant to a contractual agreement with the City of New York. Tera further testified that the agreement demonstrates that the City defendants are not responsible for providing social service, building maintenance or security at the shelter.

In effect, Tera claims that the contractual agreement between the City defendants and SUS not only gives SUS the obligation to run the shelter but also proves that the City defendants have no responsibility for providing social service, building maintenance or security at the shelter. The City defendants and FJC, however, did not annex a copy of the aforementioned agreement to the motion. Consequently Tera's testimony lacks an evidentiary foundation. The City defendants and FJC have failed to establish by evidence in admissible form the connection or relationship between the City defendants and the shelter.

Under these circumstances, the argument that the plaintiff cannot establish that they owe him a duty of care is nothing more than an improper attempt to meet a moving defendants burden by pointing to gaps in plaintiff's proofs (Quantum Corporate Funding, Ltd. v Ellis, 126 AD3d 866, 871 [2nd Dept 2015]). Since they failed to sustain their prima facie burden, it is unnecessary to consider the sufficiency of the plaintiff's opposition papers (Winegrad, 64 NY2d at 853).

FJC has made two additional arguments for dismissal of the complaint that were not advanced by the City defendants. FJC contends that as a party that entered into a contract to render security services at the shelter, it did not owe a duty of care to the plaintiff. FJC is correct in asserting that a contractual obligation, standing alone, will generally not give rise to tort [*5]liability in favor of a third party (see Espinal v Melville Snow Contrs., Inc., 98 NY2d 136, 138 [2002]). There are, however, three exceptions to this rule, namely, where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches a force or instrument of harm, where the plaintiff detrimentally relies on the continued performance of the contracting party's duties, and where the contracting party has entirely displaced another party's duty to maintain the premises safely (Rudloff v Woodland Pond Condominium Assn., 109 AD3d 810 [2nd Dept 2013], citing Espinal, 98 NY2d at 140).

FJC did not annex a copy of the contract that it entered into for its services. Without the contract, FJC cannot establish that the scope of its service did not entirely displaced the duty of the owner, possessor or manager of the shelter to maintain the premises safely. Consequently, FJC did not support its contention that it had no duty to the plaintiff because it was merely providing security services pursuant to a contract.

FJC further contends that even if it owed and breached a duty of care to the plaintiff, any such breach was not the proximate cause of plaintiff's injuries. This branch of FJC's argument is based on certain facts that the plaintiff stated at his deposition. In particular, the plaintiff stated that Michael Smith, the individual he shared a room with at the shelter, was smoking an illicit drug. When the plaintiff exited the room expecting to find a security person to report Smith's disturbing conduct he did not find a security person on his floor. He then returned to his room and was assaulted and injured by Michael Smith. FJC contends that these facts demonstrate that the voluntary act of the plaintiff in returning to his room and the conduct of Michael Smith were the sole proximate cause of plaintiff's injuries and not the alleged acts or omissions of FJC.

The absence of a contract setting forth the scope of FJC's obligations under itssecurity service agreement leaves unanswered the reasonable expectation that the owner, possessor or manager of the shelter had of FJC. It also leaves unanswered whether the residents of the shelter were an intended third party beneficiary of the agreement and if so the reasonable expectations the residents had of FJC.

FJC claims, inter alia, that Smith's assault of the plaintiff proximately caused and broke the causal connection between FJC's alleged negligence and plaintiff's injuries.

When a question of proximate cause involves an intervening act, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence (Hain v Jamison, 28 NY3d 524, 529 [2016], citing Mazella v Beals, 27 NY3d 694, 706 [2106]). Thus, where the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed (Hain, 28 NY3d at 529, citing Derdiarian v Felix Constr Co., 51 NY2d 308, 315 [1980]). Rather, the mere fact that other persons share some responsibility for plaintiff's harm does not absolve defendant from liability because there may be more than one proximate cause of an injury (Hain, 28 NY3d at 529, citing Mazella, 27 NY3d at 706). It is only where the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct, that it may ... possibly break the causal nexus (Mazella, 27 NY3d at 706 quoting Derdiarian, 51 NY2d at 315). To state the inverse of this rule, liability subsists when ... the intervening act is a natural and foreseeable consequence of a circumstance created by defendant (Hain, 28 NY3d at 529, citing Kush v City of Buffalo, 59 NY2d 26, 33 [*6][1983]).

Although foreseeability and proximate cause are generally questions for the factfinder, there are instances in which proximate cause can be determined as a matter of law because only one conclusion may be drawn from the established facts (Hain, 28 NY3d at 529, citing Derdiarian, 51 NY2d at 315). Such cases may arise when the plaintiff's injuries are caused by independent intervening acts which operate upon but do not flow from the original negligence (Id.).

FJC's motion papers did not establish that it owed a duty of care to the plaintiff, that it did not breach a duty of care owed to the plaintiff and that its negligence did not proximately cause plaintiff's injuries. All of these issues must be determined by the trier of fact. It cannot be said under these circumstances that FJC bore nor responsibility for plaintiff's injuries.

FJC has also moved to dismiss the cross-claim of SUS asserted against it for contribution and common law indemnification. A cause of action for contribution requires that the culpable parties must be subject to liability for damages for the same personal injury (Nassau Roofing & Sheet Metal v Facilities Development Corporation, 71 NY2d 599 [1988]). The parties need not be liable under the same theories or whether the party whom contribution is sought is allegedly responsible for the injury as a "concurrent, successive, independent, alternative or even intentional tort-feasor" (Id.). Contribution is not founded upon, nor does it necessarily arise from, contract, and only a ratable or proportional reimbursement is sought (McDermott v City of New York, 50 NY2d 211 [1980]; McFall v Compagnie Maritime Belge S.A., 304 NY 314 [1952]; Fox v. County of Nassau, 183 AD2d 746, 746 [2nd Dept 1992]). "Where a party is held liable at least partially because of its own negligence, contribution against other culpable tort-feasors is the only available remedy" (Fox, 183 AD2d at 746). "To sustain a cause of action for contribution, the party seeking contribution is required to show that ... a duty was owed to the plaintiff as an injured party and that a breach of that duty contributed to the alleged injuries" (Eisman v Vil. Of E. Hills, 149 AD3d 806, 808-809 [2nd Dept 2017] quoting Guerra v St Catherine of Sienna, 79 AD3d 808 [2nd Dept 2010]). "The critical requirement ... is that the breach of duty by the contributing party must have had a part in causing or augmenting the injury for which contribution is sought" (Eisman, 149 AD3d at 808-09 quoting Nassau Roofing & Sheet Metal Co., 71 NY2d at 603). Thus, contribution is not available where the co-defendant owed no duty or breached no duty to either the party seeking contribution or to the plaintiff (see Rodriguez v Suffolk, 305 AD2d 574 [2nd Dept 2003]).

The principle of common-law, or implied, indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party (Board of Mgrs. of the 125 N. 10th Condominium v 125North10, LLC, 150 AD3d 1063, 1064 [2nd Dept 2017], quoting Curreri v Heritage Prop. Inv. Trust, Inc., 48 AD3d 505, 507 [2nd Dept 2008]). The party seeking indemnification must have delegated exclusive responsibility for the duties giving rise to the loss to the party from whom indemnification is sought, and must not have committed actual wrongdoing itself (Tiffany at Westbury Condominium v Marelli Dev. Corp., 40 AD3d 1073, 1077 [2nd Dept 2007], quoting 17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 80 [1st Dept 1999]). Common-law indemnification is warranted where a defendant's role in causing the plaintiff's [*7]injury is solely passive, and thus its liability is purely vicarious (Balladares v Southgate Owners Corp., 40 AD3d 667, 671 [2nd Dept 2007]; see Dreyfus v MPCC Corp., 124 AD3d 830, 830 [2nd Dept 2015]).

FJC's sole argument in support of dismissal of SUS's cross claims is the conclusory assertion that there is no evidence to support SUS's claim. Under these circumstances, FJC's argument is nothing more than an improper attempt to meet its burden by pointing to gaps in SUS's proofs (Quantum Corporate Funding, Ltd., 126 AD3d at 871). Since FJC failed to sustain its prima facie burden, it is unnecessary to consider the sufficiency of SUS's opposition papers (Winegrad, 64 NY2d at 853).

By notice of motion SUS has moved to dismiss the complaint asserted against it on four grounds. The first is that the plaintiff cannot establish that the assault was foreseeable. The second is that SUS had no authority, ability or opportunity to control Smith's conduct. The third is that SUS exceeded the minimum standard imposed on landlords. The fourth is that SUS did not assault the plaintiff.

SUS has admitted that it leased the shelter from Blake Holding LLC and operated the shelter as a landlord. While a landlord has the duty to control the conduct of persons on its premises when it has the opportunity to do so and is reasonably aware of the need for such control, it has no duty to protect customers against an unforseen and unexpected assault (Petras v Saci, Inc., 18 AD3d 848 [2nd Dept 2005], citing Cutrone v Monarch Holding Corp., 299 AD2d 388 [2nd Dept 2002]; Scalice v Kullen, 274 AD2d 426 [2nd Dept 2000]).

In support of its motion SUS submitted, among other things, the following sworn testimony: the deposition testimony of Adolphus Quinton (hereinafter Quinton), the affidavit of Derrick Williams (hereinafter Williams) and the 50H hearing and deposition transcript of the plaintiff. SUS also annexed, among other things, a copy of the purported contract between the City defendants and SUS and a copy of the purported service agreement between SUS and FJC. However, the motion papers contained nothing to authenticate either of these documents.

Quinton testified that he was an employee of FJC for about three or four years and that he was working at the shelter on the date of plaintiff's injury. He further testified that the shelter was a dangerous place and that fights occurred between the residents more than ten times, in fact, all the time that he was there. He also testified that an entity called DHS was also at the shelter to provide security services.

SUS claims that the plaintiff was injured as the result of a sudden and unexpected altercation by Smith which SUS could not have reasonably anticipated or prevented. However, Quinton's testimony established that the shelter was a dangerous place and that resident on resident violence was common, and therefore, foreseeable occurrence.

Williams offered the following testimony. He has been employed at the shelter since 2013. SUS had contracted with FJC to provide security services at the shelter. FJC security personnel were present on every floor and were responsible for conducting walking tours and dormitory checks every half hour. SUS did not have these responsibilities. On May 25, 2014, at 1:35 a.m., plaintiff and David Colon came to the House Manager's office and informed Williams and Malcolm George, the House Manager, that the plaintiff was assaulted by Smith. Williams did not state the basis of his knowledge regarding the responsibilities of FJC and SUS at the [*8]shelter. Consequently, his testimony regarding same lacks an evidentiary foundation.

Plaintiff testified that he expected security personnel to be on the floor outside of his room. When the plaintiff went outside of his room to the floor to report that Smith was smoking an illicit drug, he found no security personnel on the floor.

In light of the foregoing, SUS failed to establish that the assault of the plaintiff was unforeseeable, that it had no authority, ability or opportunity to control Smith's conduct, and that it exercised reasonable care under the circumstances. In sum SUS failed to make a prima facie showing of entitlement to dismissal of the complaint.

Credle seeks to strike the City defendants and SUS's answer on the basis that they allegedly failed to comply with Credle's repeated discovery demands. Credle seeks in the alternative an order permitting plaintiff to conduct further discovery post note of issue for an award of sanctions and costs.

Pursuant to 22 NYCRR 202.7 (a) and (c), a motion relating to disclosure must be accompanied by an affirmation from moving counsel attesting to a good faith effort to resolve the issues raised in the motion, including the time, place and nature of the consultation as well as the issues discussed (Bronstein v Charm City Hous., LLC, 175 AD3d 454 [2nd Dept 2019]). Contrary to the requirements of 22 NYCRR 202.7 (a) and (c), Credle's motion papers did not include such an affirmation and is therefore procedurally defective.

Credle's request in the alternative for an order permitting additional discovery post note of issue is not supported by either the affirmation of his counsel or the accompanying memorandum of law in support. Credle seeks an order permitting further discovery post note of issue without having made a motion for an order compelling the defendants to provide the requested discovery. However, a motion to compel such discovery would also require an affirmation pursuant to 22 NYCRR 202.7 (a) and (c) (JP Morgan Chase Bank, Nat. Ass'n v Levenson, 149 AD3d 1053,1054 [2nd Dept 2017]).

CPLR 2214 (a) provides that a notice of motion shall "specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor" (Abizadeh v. Abizadeh, 159 AD3d 856, 857 [2nd Dept 2018]). With regard to the branch of Credle's motion seeking an award of cost and sanctions, he did not cite any law in support of the relief requested to meet the requirements of CPLR 2214 (a). Therefore, this branch of his motion may be denied without prejudice based on the deficiency of the moving papers.

The motion of the City of New York, the City of New York s/h/a New York City Department of Homeless Services and FJC Security Services, Inc. for an order pursuant to CPLR 3212 granting summary judgment in their favor dismissing plaintiff Kevin Credle's complaint is denied.

The motion of FJC Security Services, Inc. for an order pursuant to CPLR 3212 granting summary judgment in its favor dismissing the cross claims of Services for the Underserved asserted against it is denied.

The motion of Services for the Underserved for an order pursuant to CPLR 3212 granting summary judgment in its favor dismissing plaintiff Kevin Credle's complaint is denied.

The motion of Kevin Credle for an order striking the answer of the defendants is denied without prejudice.

The motion of Kevin Credle for an order permitting him to conduct further discovery post note of issue is denied.

The motion of Kevin Credle for an order granting an award of sanctions and costs is denied.

The foregoing constitutes the decision and order of this Court.