Security officers cannot be everywhere at once; Premises owner held not liable to visitors assaulted in parking lot

Azizy, et al. v. Hunts Point Terminal Produce Cooperative Association, Inc., and the City of New York, (Sup. Ct. Bronx Cty. Index No. 27477/2016E)

A Bronx Court granted summary judgment to defendants who satisfied their duty to provide security and could not have foreseen the attack on plaintiffs.

A “targeted, criminal” attack happened when the two plaintiffs were at the defendants’ premises, buying produce. In the early morning on August 12, 2015, four men attacked the two plaintiffs near where they had parked their truck. Later, one of the assailants was identified as a worker who had previously complained about not being paid after assisting plaintiffs a few nights earlier. The assailants escaped the premises in a fast-moving car, but one of the four, named Peralta, was later apprehended, and he pled guilty to First Degree Robbery related to the assault. Plaintiffs commenced this action against the property owners to recover damages for their personal injuries, which were substantial. They claimed that the defendants were negligent in failing to provide adequate security on the premises.

The evidence revealed there were ample security measures but that the assailants had carefully evaded them to perpetrate the attack. A high wire-topped wall surrounded the premises on three sides, and a river ran along the other. The three entrances to the premises – one for vehicles, two for pedestrians – were controlled by security, and anyone entering had to show a valid government-issued identification. There was only one exit, also staffed with security personnel. Within the walls, there was more security personnel, including staff at fixed posts and other roving patrols, as well as security cameras positioned all over.

Peralta had been on the premises before, without incident. However, shortly before midnight that night Peralta entered the premises in a car bearing false license plates and drove to an area where the plaintiffs usually parked their truck when they came to the Market. There Peralta waited. After some time, a security patrol car passed by, and then Peralta and the other assailants went into action. Peralta removed weapons from the car and distributed them to the others. It was around 12:55 am that the four attacked the plaintiffs under the light of a light pole standing only about 20 feet away.

Defendants moved for summary judgment contending that they had no notice that such an attack was going to occur nor that it was likely to occur; and that Defendants provided the necessary security at the premises which the assailants had evaded only by great effort. There was no pattern of violent criminal behavior within the premises. Police were unaware of any prior assaults there like the one that occurred on the date of the incident. Minor incident reports of non-violent misbehavior could not make a violent crime, such as the actions of the assailants, foreseeable. Moreover, the presence of the lone identified assailant at the premises was not suspicious. He was there often as a laborer, without incident, and had gained entrance normally. Defendants’ security measures were extensive by anyone’s standards, but they could not be expected to prevent a targeted, carefully-timed, and quickly-executed criminal assault motivated by revenge.

The Court dismissed all causes of action against the Defendants.

AGF&J Partner Steven Disiervi briefed and argued the motion, assisted by Associate James Brown.