This is defendant Veronica Casillas' motion for summary judgment. See Dkt. Nos. 27-37 (notice of motion with supporting affirmation of counsel, exhibits, and a memorandum of law). The motion is made on the grounds that defendant Casillas, as landlord (and grandmother) had no foreseeable legal duty of control over or any other sufficiently demonstrable notice of any illegal activity or abusive behavior committed by co-defendant Shane Casado (her tenant/grandson) at her home prior to the shooting committed by co-defendant Casado on November 27, 2018, resulting in the death of plaintiffs' daughter, Rachael Wierzbicki.

The gut-wrenching and tragic event of November 27, 2018, occurred in the front yard/driveway area of the two-family residence owned by defendant Casillas who lived on the first floor of the home. Co-defendant Casado, defendant Casillas' grandson, occupied the second-floor apartment that had a separate entrance for direct access. At the time of the incident defendant Casado was 24 years old (age calculated based on his deposition testimony that he graduated from high school in 2012), was a fully emancipated adult living separately and independently from his parents whose home he left when he moved into his grandmother's second floor apartment approximately 8-10 months prior to the incident, and was not under any form of guardianship or legal supervision embedded in favor of the defendant Casillas. The record is devoid of any formal legal documents or papers relating to the landlord-tenant relationship between the defendants (no lease, no other exchange of anything in writing describing any agreement for the tenant-grandson's right to move-in and occupy the apartment . . . it was a pure family-based rental with no rent). Nor is there anything of record that tangentially lays out any other relevant terms and conditions of use, possession, and occupancy of the second-floor apartment by the tenant . . . no rules, regulations or conditions of any prohibited activities by the tenant that would potentially constitute grounds to provoke a notice of default from the landlord.

Contextually speaking, however, it is equally clear from the deposition testimony of the [*2]defendants that none of the usual and customary legal documentary formalities of a landlord-tenant relationship were ever considered to be necessary in light of their family consanguinity relationship. It is equally clear from the defendants' deposition testimony, and not contradicted by any first-hand, direct knowledge deposition testimony from the plaintiffs or any other witnesses, that while the defendants had a close grandparent-grandchild relationship, they lived completely separate and apart. In her capacity as landlord (and grandmother) defendant Casillas testified that she did not personally see, hear, observe, nor was she ever told about any incidents of loud arguments, fights, or any other disruptive behavior by co-defendant Casado against Rachael before the night of the incident. Defendant Casillas testified that she became aware at some point in time that co-defendant Casado had a rifle in the apartment for "hunting" but nothing more about a "gun" being known or reported to her before the night of the incident.

Plaintiffs' initial opposing papers included the affirmation of counsel with exhibits, an affirmation from plaintiff Lauri Wierzbicki and a memorandum of law in opposition, Dkt. Nos. 38-49. Plaintiffs made a core argument that there were at least questions of fact surrounding how much defendant Casillas knew or should have known about the potential physical harm proclivities her tenant grandson was capable of inflicting on others, particularly plaintiffs' daughter, who frequently came to and spent considerable periods of time in co-defendant Casado's apartment. Collaterally, plaintiffs also requested the opportunity to complete the missing deposition discovery that had been sidelined over the preceding couple of years which they (plaintiffs) believed could potentially display relevant "matter material and necessary" to their prosecution of this action (CPLR 3101 [a]) and unearth "(f)acts unavailable to the opposing party "necessary to oppose the summary judgment motion. CPLR Rule 3212 (f).^[FN1]

Defendant Casillas filed a reply affirmation and related exhibits in further support of the motion and opposing the request to delay or continue the motion to accommodate the conducting of further depositions on the grounds that whatever the plaintiffs could set forth during the course of a deposition could have just as easily (possibly more easily) been laid-out in the form of lengthy affirmations in opposition to the motion. Dkt. Nos. 50-56.

The motion was argued in Special Term on May 8, 2025. At the conclusion of oral argument, the Court granted the plaintiffs' request to be given the opportunity to conduct the unfinished discovery they argued as being needed to seek out "all matter material and necessary" to the prosecution of their action, and issued a time-sensitive continuance of the motion pursuant to CPLR 3212 (f), requiring all of the desired depositions to be completed within 30 days, and permitting both parties to submit the deposition transcripts and such other issue specific affirmations as they desired by June 30, 2025. In furtherance of the post-argument discovery continuance granted, the plaintiffs submitted the affirmation of counsel along with full transcripts of their respective depositions and two non-party witnesses (including exhibits marked or referenced at each of the depositions) to set forth their opposition to the summary judgment motion. Dkt. Nos. 61-67. Defendant Casillas filed a reply affirmation in further [*3]support of the motion. Co-defendant Casado did not submit any papers in support of or in opposition to the motion but did attend and participated fully in the depositions that were conducted and produced to complete the record now placed before the Court.

The Court has read all of the deposition transcripts offered by the parties, including the non- party depositions of Rachael's friends who were produced directly by the plaintiffs for the purpose of obtaining their testimony in opposition to this motion for summary judgment. There was extensive questioning of both plaintiffs and non-party witnesses by all counsel, beginning with plaintiffs' attorney's full line of questioning to lay out as much as they could present on the issue at hand on this motion: what did defendant Casillas see, hear, know- either directly or indirectly- about any prior incidents of violent, criminal or physically abusive behavior committed by her tenant-grandson at the property against plaintiffs' daughter or anyone else before the evening of November 27, 2018.

The foreseeability factor is the driving force on the issue of a landlord's negligence liability for injury caused to a third-party by the acts of a tenant or other permitted occupant over whom the landlord has some measure of authority to control and some degree of knowledge by the landlord of prior criminal or other harm producing violative actions of the tenant or others that it (landlord) knew or should have known created threats of harm to innocent visitors.

The digesting of this issue starts with the opinion rendered by the Court of Appeals in Nallan v Helmsley-Spear, Inc., 50 NY2d 507 (1980). In a nutshell, the Court held that a cause of action for negligence is maintainable against a landowner for acts of third parties on the premises when there has been a history of known incidents of harm at or upon the premises IF "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)." id. at 519. In Nallan, the record showed that during the 21 months preceding the incident alleged in the complaint there had been 107 prior criminal acts committed at the property where the plaintiff was injured (plaintiff was shot in the lobby of a building owned by the defendant by a gunman), of which "at least 10 of these unlawful acts were crimes against the person." id. With that history of prior criminal acts, the Court reversed the lower court's dismissal and reinstated the plaintiff's complaint for a new trial.

The issue was addressed by the Court again in 1991 when it held that "foreseeability" had a degree of limitational scope even in cases where the landlord knew or should have known of a prior history of repeated criminal activity occurring at the leased premises (in that case the activity was streetfront store drug trafficking), and there was no liability chargeable to the landlord for an injury suffered by a passerby pedestrian on the outside sidewalk who was shot during an attempted robbery at the streetfront store premises. (Muniz v. Flohern, Inc., 77 NY2d 869 [1991]). In Muniz the Court reversed the Appellate Division, First Department, and dismissed the action against the landlord, holding, "Nor was there any relationship between the attempted robbery and the illicit drug activity such as to require defendants to attempt to control the conduct of either the tenant or the gunman. Moreover, there was no relationship between defendants and the infant plaintiff requiring defendants to afford protection from potential dangers springing from the tenant's illicit drug trafficking in the streetfront store (citation string omitted)." id. at 870. In effect, the Court held that prior known criminal activity (drug dealing out of the leased premises) was not in and of itself a basis to hold the landlord-defendant liable [*4]for an unknown and spontaneous event involving a different and isolated criminal act (an armed robbery) that resulted in injury to a random passerby.

The issue was further scrutinized by the Court in Jacqueline S. by Ludovina S. v City of New York, 81 NY2d 288 (1993). In Jacqueline S., involving the abduction and rape of an infant in a public housing project, the Court emphatically reiterated its ruling in Nallan and somewhat detoured away from the "unforeseeability" analysis composed in Muniz. Without citing or distinguishing the case from Muniz (and it is undisputed that the facts are drastically different) the Court put it this way in Jacqueline S.:

"We have never adopted the restrictive rule urged by defendant and apparently embraced by the Appellate Division: that to establish the foreseeable danger from criminal activity necessary for liability, the operative proof must be limited to crimes actually occurring in the specific building where the attack took place (see, Miller v State of New York, 62 NY2d 506; Nallan v Helmsley-Spear, Inc., 50 NY2d 507; see generally, Prosser and Keeton, Torts § 63, at 442-443 [5th ed]; Annotation, Landlord's Obligation to Protect Tenant Against Criminal Activities of Third Persons, 43 ALR3d 331). ln Nallan v Helmsley-Spear, Inc., which recognized the duty of landlords to take steps to minimize foreseeable danger from criminal acts, we cast foreseeability more generally—i.e., in terms of "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' " (id., at 519).

There is no requirement in Nallan or Miller that the past experience relied on to establish foreseeability be of criminal activity at the exact location where plaintiff was harmed or that it be of the same type of criminal conduct to which plaintiff was subjected. Indeed, in Miller, the occurrence of criminal activity in plaintiff's college dormitory was held to be *295 foreseeable, in part, because of different criminal conduct occurring in other dormitories on the same campus (see, Miller, supra, at 509). Whether knowledge of criminal activities occurring at various points within a unified public housing complex, such as Wagner Houses, can be sufficient to make injury to a person in one of the buildings foreseeable, must depend on the location, nature and extent of those previous criminal activities and their similarity, proximity or other relationship to the crime in question (see, e.g., Keenan v Dayton Beach Park No. 1 Corp., 175 AD2d 862; see also, Trentacost v Brussel, 82 NJ 214, 412 A2d 436; Czerwinski v Sunrise Point Condominium, 540 So 2d 199 [Fla App]; Paterson v Deeb, 472 So 2d 1210 [Fla App]; Bayshore Co. v Pruitt, 175 Ga App 679, 334 SE2d 213).

In Woods v Alexander, 267 AD2d 1060 (4th Dept. 1999), the plaintiff was assaulted at a Sabres hockey game at the downtown arena that was under the management control of certain distinct landlord-tenant entities (the City of Buffalo as owner/landlord of the arena, the team ownership group as "tenant" and other related management and security parties). The issue presented was the plaintiff's attempt to obtain discovery of "prior criminal, violent and 'rowdy' behavior" at the premises during prior games which the Fourth Department found to be appropriate for the purpose of allowing the inquiry into the seminal liability issue to be flushed-out, and plainly set forth the legal standard as follows:

"It is well established that a landlord is " 'under a duty to take reasonable security [*5]measures to [prevent] the intentional criminal acts of others if he knows or should know that common areas upon his premises have been the scene of recurrent criminal activity' " (Rodgers v 673 First Ave. Assocs., 157 AD2d 615, 615-616, quoting Gill v New York City Hous. Auth., 130 AD2d 256, 262; see also, Jacqueline S. v City of New York, 81 NY2d 288, 294, rearg denied 82 NY2d 749; Maldonado v 69-70 Assocs., 225 AD2d 1107). The status of the person injured is not determinative of the duty of care owed by the owner of the premises (see, Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 519, n 6, citing Basso v Miller, 40 NY2d 233). The duty of care is premised on the foreseeability of the criminal act (see, Jacqueline S. v City of New York, supra, at 294-295; Nallan v Helmsley-Spear, Inc., supra, at 519-520). Information about the existence of prior criminal activity is material to the question of foreseeability (Maldonado v 69-70 Assocs., supra, at 1107)." id.

In Neil v. New York City Housing Auth., 48 AD3d 767 (2nd Dept. 2008) the Second Department followed the same line of reasoning on the ultimate issue of fact involving landlord liability and denied the landlord-defendant's motion to dismiss the plaintiff's claim under the following rationale:

"There is no requirement that the prior criminal activity be of the same type as that to which the plaintiff was subjected in order to establish foreseeability of the plaintiff's injury, but the court must consider "the location, nature and extent of those previous criminal activities and their similarity, proximity or other relationship to the crime in question" (Jacqueline S. v. City of New York, 81 NY2d 288, 295, 598 N.Y.S.2d 160, 614 N.E.2d 723; see Venetal v. City of New York, 21 AD3d 1087, 1089, 803 N.Y.S.2d 609; Novikova v. Greenbriar Owners Corp., 258 AD2d 149, 153, 694 N.Y.S.2d 445). Here, the plaintiff and his mother were previously threatened by the assailant after they complained to the defendant and the police about the assailant's activities on the premises. The plaintiff allegedly was assaulted by the assailant on his return to the building. The defendant was unable to establish, prima facie, that the assault was unrelated to those prior complaints or that the assault was not foreseeable based upon the prior occurrences (italics added)." id. at 769.

By contrast, and with remarkable similar factual scenarios, two cases from the First Department provide a concise summary of how the facts in this type of case get measured against the applicable law as set forth in the above-cited cases. In Tarter v Schildkraut, 151 AD2d 414 (1st Dept. 1989), "plaintiff's jilted lover" followed her into the vestibule of her apartment building and shot her with a shotgun. Plaintiff brought an action against the landlord-owner of the building alleging that the door she was attempting to get open was jammed with defective locks that the landlord had received prior complaints about. The trial court denied defendant's motion to dismiss at the close of plaintiff's case-in-chief at trial and the jury awarded a substantial verdict in plaintiff's favor. The Appellate Division reversed, holding that "a landlord has a 'minimal' duty to protect tenants (and third parties as well . . . see Nallan) from reasonably foreseeable criminal acts, and explicitly emphasized "that the criminal act of the plaintiff's ex-lover" was not foreseeable where "there was no evidence of a history of prior criminal conduct (underscore added). id at 415 citing Santiago v New York City Housing Authority, 101 AD2d 735 (1st Dept. 1984), aff'd 63 NY2d 761 (1984). (See also Camacho v Edelman, 176 AD2d 453 [1st Dept. 1991], affirming dismissal of plaintiff's complaint on the grounds that based on "little evidence of criminal activity in the building there are insufficient [*6]facts to base a finding of foreseeability (citation omitted) . . . Moreover, the criminal act of the tenant's former lover was not a foreseeable event." id. at 454.)

Though Tarter and Camacho involved criminal acts against the tenants by former lovers (whom the landlord presumably did not know and could not have known anything about them to prevent their actions), coupled with and applying the well-established principles laid down in Nallan, Jacqueline S., Woods and Neil, the analysis thread is the same for all examinations of a landlord's liability . . . did he/she know or should have known of the likelihood of criminal conduct by anyone at or upon their property based on a sufficient history of prior criminal or other violative acts to create a reasonable degree of foreseeability of harm to others at the property?

Based on a thorough reading and review of all the submitted material offered in support of and in opposition to defendant Casillas' motion for summary judgment, the Court's conclusion in this case is that the answer to the above query is inescapably reached in the negative.

Defendant Casillas has produced and presented admissible proof in the form of her direct deposition testimony that she never heard, saw or was ever informed or advised of any physical harm inflicted by her grandson, co-defendant Casado, against or upon plaintiffs' daughter Rachael at any time or any place, particularly never hearing, seeing or being told of any such actions by him against Rachael at her home. The only testimony from plaintiff Lauri Wierzbicki and non-party witness Summer Locking about some other episode(s) that occurred at the property involved one occasion when co-defendant Casado and some friends were engaging in "playful wrestling" during a backyard bonfire birthday gathering at the home. During the course of that evening there was a separate event where Rachael and Summer were "very, very, very angrily" confronted by Casado while they attempted to get into the apartment for more food but had to bang on the door in attempting to open it because it was "stuck." These are the only two prior incidents (occurring at the same event) that the plaintiffs rely upon to speculatively assert that defendant Casillas "should have" at least heard and "known" that her tenant-grandson had some angry/violent tendencies. But there is no testimony from the plaintiffs or any other witnesses whereby they have stated that defendant Casillas came out or appeared at the party to complain about what was going on or that they had informed defendant Casillas of those two incidents at or near the time they were happening or otherwise ever made her aware and openly complained to her about any harmful misconduct by co-defendant Casado against Rachael at any time, particularly that any such misconduct was occurring at the house.

Plaintiffs' attempt to correlate or connect what they claim and describe to be the emotionally charged actions and behavior between co-defendant Casado and their daughter to the defendant Casillas is speculative and conjectural, at most, and has not adequately created a material question of fact on the issue of foreseeability. Indeed, the most specific and relevant line of deposition questioning conducted of both plaintiffs for the purpose of allowing them to testify as fully, openly and plainly as they could to show some form of actual or reasonably inferable notice or knowledge by defendant Casillas of the relationship between co-defendant Casado and Rachael came along during their questioning by opposing counsel . . . first by Casado's counsel's questioning of plaintiff Lauri Wierzbicki (Tr., pgs. 91-93, 96, 104-105, 110) and then by defendant Casillas' counsel of plaintiff Mark Wierzbicki (Tr., pgs. 24-26). Both plaintiffs expressed their heartbroken sadness about the overall course of events they saw and heard about from Rachael relative to the downward spiraling relationship she was having with defendant [*7]Casado (mostly in the form of verbal conversations or text messages between Rachael and her mother), but neither of them could relate any of those communications or events to occurring in the presence of or otherwise being seen, heard, or reported to and known (or should have been known) by defendant Casillas.

On the total record submitted for this motion, defendant Casillas has sufficiently satisfied her prima facie burden of establishing her entitlement to judgment as a matter of law with evidentiary proof in admissible form (Zuckerman v. City of New York, 49 NY2d 557 [1980], citing Friends of Animals v Associated Fur Mfrs, 46 NY2d 1065), and plaintiffs' valiant efforts to " 'show facts sufficient to require a trial of any issue of fact' (id. at 562), fell short with a showing of "little evidence" that defendant Casillas knew or should have known that her grandson possessed and displayed any acts of criminal behavior at her home that made the action committed by him against his "former lover" on November 27, 2018, a "foreseeable event." Camacho, supra. As stated by the Fourth Department in Woods, while "[t]he status of the person injured is not determinative of the duty of care owed by the owner of the premises (citations omitted) . . . [i]nformation about the existence of prior criminal activity is material to the question of foreseeability (citation omitted) (italics added)," Woods at 1061, and in the present case there is a lack of credible evidence showing "information" that her tenant-grandson would commit such a violent act at her home was ever seen, given or inferentially known to the defendant Casillas.

Based on the foregoing, defendant Casillas' motion for summary judgment is GRANTED in its entirety and the plaintiffs' complaint against defendant Casillas is DISMISSED.

Submit order in accordance with Uniform Rule 202.48.