Supreme Court, Erie County

Decided on April 1, 2026

Index No. 808476/2025

Raymond W. Walter, J.

[*1]

The Court, in addition to hearing oral arguments on March 12, 2026, considered the following papers in Defendant, EMILY GAGHICH's, pre-Answer motion to dismiss pursuant to CPLR § 3211(a)(7): NYSCEF document numbers 8 through 18.

Initially, Plaintiff asserts that Defendant's pre-Answer motion to dismiss is untimely. Defendant has never answered or moved for an extension of time to answer or file a motion to dismiss and her time to do so has long since expired. In response Defendant's attorney, Mr. Rupp, submits an affirmation with attached email chain where he notes that he was given a general extension to answer by Plaintiff's prior counsel. The email chain also shows ongoing discussions regarding potential settlement and that both parties understood an answer would be forthcoming.

It is clear from the record that the parties were engaged in settlement negotiations, and the Defendant was operating on the belief that Plaintiff's attorneys had provided a general extension to answer. These circumstances demonstrate that the delay was not willful or unexplained, constitutes a reasonable excuse for the delay, and Plaintiff has not suffered any prejudice. The Court, therefore, accepts the Defendant's pre-Answer motion to dismiss as timely [*2]pursuant to CPLR § 2004.

As to the merits of the motion, on a pre-Answer motion to dismiss for failure to state a cause of action the Court will accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Leon v Martinez, 84 NY2d 83, 87 [1994]). Here, Plaintiff alleges the following facts: On or about January 1, 2024, Plaintiff attended a New Years' Eve party at the home of CRAIG GAGHICH JR. and EMILY GAGHICH. Plaintiff was invited to stay the night and sleep on the couch in the Gaghich's home. At some point during the early morning hours Plaintiff was physically and sexually assaulted and unlawfully confined and restrained by CRAIG GAGHICH JR.

Plaintiff alleges that Defendant, EMILY GAGHICH, knew that her husband was physically and sexually assaulting Plaintiff. She also alleges that EMILY GAGHICH knew or should have known that her husband had a history of physically and sexually assaulting other individuals prior to this attack on Plaintiff. Plaintiff further alleges that EMILY GAGHICH failed to warn, intercede, interrupt, dissuade, stop, or prevent the physical and sexual assault that was occurring to Plaintiff. EMILY GAGHICH's negligence in failing to warn Plaintiff, despite her actual or constructive knowledge of CRAIG GAGHICH JR.'s dangerousness, resulted in injuries to Plaintiff.

Defendant argues, even accepting the previously stated facts as true, that under New York Law EMILY GAGHICH does not owe a legally recognized duty of care to Plaintiff. Defendant contends that the duty to protect against or control the conduct of others exists only where there is a special relationship between the defendant and the tortfeasor. Such special relationships include master and servant, parent and child, common carriers and their passengers (Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 233 [2001]). Defendant argues marriage is not such a recognized category under New York law and that including it would risk limitless liability to an indeterminate class.

In response, Plaintiff argues she is not alleging a duty predicated upon a spousal relationship with the assailant but on the longstanding principles of premises liability. Plaintiff contends that as someone who occupied and controlled the residence, Defendant had a common law duty to keep the property in reasonably safe condition (Zuckerman v State of New York, 209 AD2d 510, 511 [2d Dept 1994]). Plaintiff cites to a number of cases that recognize a common law duty for the possessor of property to protect others from injury including injury caused by the foreseeable conduct of a third party on the property (see Mason v UESS Leasing Corp., 96 NY2d 875 [2001]; Burgos v Aqueduct Realty Corp., 92 NY2d 544 [1998]; Williams v Citibank, 247 AD2d 49,51 [1st Dept 1998]; JG v Goldfinger, 161 AD3d 640 [1st Dept 2018]; Riggio v Belscher, 242 AD3d 1583, 1584 [4th Dept 2025]). In sum, Plaintiff maintains that Defendant's duty "does not arise from control over her spouse or the lack thereof, but from her obligations to plaintiff as a guest on the property to warn her and protect her from foreseeable criminal activity" (NY St Cts Elec Filing [NYSCEF] Doc No. 14, mem of law at 6).

Plaintiff, therefore, has abandoned any argument that Defendant has a legally enforceable duty, as the spouse of the assailant, to control the actions of her husband's violent or predatory tendencies. The Court will, therefore, limit its analysis and decision to the argument that Defendant's liability is wholly grounded in premises liability.

First, a landowner's duty to protect persons on the premises from criminal acts is generally limited to taking reasonable precautions against foreseeable criminal acts of third [*3]parties, typically in the context of intruders gaining access to the premises (Burgos v Aqueduct Realty Corp., 92 NY2d at 550 ["a landlord's culpable failure to provide adequate security and a tenant's injuries resulting from a criminal attack in the building can be established only if the assailant gained access to the premises through a negligently maintained entrance. Since even a fully secured entrance would not keep out another tenant"]).

A landowner is not an insurer of safety and liability only arises where the defendant can take meaningful protective measures tied to the property, not where the defendant is expected to control another adult's behavior (see Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 519 [1980]). The instant case does not involve an intruder or a defect in the security of the premises. Rather, CRAIG GAGHICH JR., was the owner and a resident of the home where the assault took place with a lawful right to be there. Accordingly, the premises liability doctrine does not impose a duty upon Defendant to protect Plaintiff from the intentional criminal acts of that individual.

Second, this case can be distinguished from cases involving negligent hiring, retention, or supervision of third parties lawfully on the property. In those cases, liability is predicated upon the defendant's ability to control the tortfeasor within the scope of an employment or institutional relationship, coupled with knowledge of the individual's dangerous propensities (see Druger v Syracuse University, 207 AD3d 1153, [4th Dept 2022]; JG v Goldfinger, 161 AD3d at 640). No such relationship is alleged here. Defendant is not an employer, and her husband was not acting within the scope of any employment or agency relationship. The absence of such a relationship is fatal to Plaintiff's attempt to invoke that line of authority.

Plaintiff's claim ultimately rests on the theory that Defendant, having knowledge of her husband's alleged prior misconduct, owed a duty to warn or protect Plaintiff from his actions that occurred on their jointly controlled property. New York courts, however, have not recognized such a duty in that context, and this Court declines to do so here. The imposition of liability on these facts, whether based in premises liability or not, would effectively render a spouse an insurer against the intentional criminal acts of her husband. Such a result is inconsistent with New York law. As the Court of Appeals stated in Pulka v Edelman, (40 NY2d 781, 786 [1976]), "a moral duty should also be distinguished from a legal duty. The former is defined by the limits of conscience; the latter by the limits of law. A person may have a moral duty to prevent injury to another, but no legal duty."

Accordingly, it is hereby

ORDERED, that Defendant's motion to dismiss is accepted as timely; and it is further

ORDERED, that Defendant's motion to dismiss the First Cause of Action in the complaint solely against EMILY GAGHICH is Granted; and it is further

ORDERED, that this constitutes the Decision and Order or the Court.

Date: April 1, 2026

HON. RAYMOND W. WALTER. J.S.C.