867 N.Y.S.2d 442 | N.Y. App. Div. | 2008
— Order, Supreme Court, New York County (Judith J. Gische, J.), entered September 7, 2007, which granted defendant’s motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint, unanimously affirmed, without costs.
Plaintiff was shot while she was talking to a friend on the grounds of the housing complex where she lived. Dismissal of the complaint was appropriate where, under the circumstances presented, defendant had no opportunity to control the conduct of the perpetrators (see Hairston v New York City Hous. Auth., 238 AD2d 474 [1997], lv denied 91 NY2d 802 [1997]). Furthermore, inasmuch as the shooting occurred in the outdoor common area of the housing complex, defendant did not owe a duty to protect plaintiff (see Daly v City of New York, 227 AD2d 432 [1996], lv denied 89 NY2d 803 [1996]; Concepcion v New York City Hous. Auth., 207 AD2d 857 [1994]).
We have considered plaintiffs remaining arguments, including that the poor lighting conditions in the area where she was shot was the proximate cause of her injuries, and find them unavailing. Concur — Tom, J.P., Saxe, Sweeny, Catterson and DeGrasse, JJ.
