Narayanan v. City of New York

In an action to recover damages for personal injuries, the defendant FJC Security Services, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Jacobson, J), dated June 2, 2003, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it. Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the complaint is dismissed in its entirety. At approximately 1:00 a.m. on September 3, 1998 the plaintiff was sleeping in a dormitory room on the second floor of a homeless shelter in Brooklyn which was operated by the City of New York when he allegedly was assaulted by three unidentified men. At the time, the appellant was retained by the City to provide security services at the shelter pursuant to a contractual agreement. It was undisputed that the policy at the shelter was to keep the dormitory room closed for privacy reasons and that the door was in fact closed at the time of the assault. The plaintiff acknowledged in his deposition testimony that at no [534] time during the assault did he attempt to escape or call out for help. He estimated the size of the room as approximately 35 feet by 20 feet. The appellant’s witness testified that it was the appellant’s policy to have two guards patrolling the hallway outside the dormitory room at all times. While the plaintiff contends that the assault was proximately caused by the appellant’s failure to provide adequate security services for the shelter, he did not claim that his assailants were intruders or that the appellant’s negligence consisted of its failure to prevent intruders from gaining access to the shelter. Assuming that the plaintiff was an intended third-party beneficiary of the contract between the appellant and the City, under these circumstances, it cannot be concluded that the appellant could have reasonably expected, anticipated, or prevented the attack upon the plaintiff (see Moberg v New York Yankees, 218 AD2d 731, 732 [1995]). Accordingly, the appellant’s motion should have been granted. In view of the foregoing, we need not reach the appellant’s remaining contentions. Schmidt, J.E, Adams and Santucci, JJ., concur.