Kender v. Taj Hotel

Dec 23, 1996
Versions:234 A.D.2d 518
651 N.Y.S.2d 913
1996 N.Y. App. Div. LEXIS 13265

—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Oshrin, J.), dated April 4, 1996, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

In light of the circumstances of the assault upon the infant plaintiff, the history of criminal acts—including a prior assault—on the defendant’s premises, and the affidavit of the plaintiff’s security expert, it cannot be said that the criminal conduct in question was unforeseeable as a matter of law (see, Johnson v New York City Hous. Auth., 114 AD2d 438; compare, Iannelli v Powers, 114 AD2d 157, 162-163). This record raises issues of fact as to whether the defendant breached its duty to take minimal precautions to protect members of the public from such acts, and whether the defendant’s negligence, if any, was the proximate cause of the infant plaintiff’s injuries (see, Nailon v Helmsley-Spear, Inc., 50 NY2d 507, 519; Miller v State of New York, 62 NY2d 506, 514; compare, Ospina v City of New York, 214 AD2d 551, 552). Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment. Pizzuto, J. P., Santucci, Friedmann and Florio, JJ., concur.