New York Trial Court Denies Bar Owner’s Motion for Summary Judgment After Plaintiff’s Expert Affidavit Creates Fact Issues Regarding Reasonableness of Security Measures at Bar

In Gaskin v. OBMP-NY LLC, the New York Supreme Court considered a personal injury suit against a bar owner, his landlord and the bar’s security company for injuries arising from a fight that broke out in the bar. OBMP-NY, the bar owner who leased the property from landlord 701 West 135, orally contracted 5Points to provide security services for the bar. Plaintiff sought to impose liability on 701 West 135 under the theory that the landlord could not avoid liability under Real Property Law § 231, which provides that the owner of real property who knowingly leases it to be used for an unlawful trade or business is liable for any damage arising from such use. Plaintiff sued 5Points for negligence and argued that once 5Points undertook to provide security it had a duty to patrons at the bar to provide security in a reasonably safe manner to prevent harm. Plaintiff also claimed that OBMP-NY breached its duty of care to provide adequate security at the bar. All defendants moved for summary judgment on the basis that each did not breach a duty to Plaintiff as a matter of law.

With respect to the Plaintiff’s claim against the landlord, the court determined that it was well-settled New York law that an out-of-possession landlord is not liable for injuries occurring on the leased premises unless it has retained control over the premises or has a contractual duty to provide security. Since the landlord did not retain any control over the premises and was not contractually obligated to provide security, the court held that the landlord could not be liable as a matter of law and granted summary judgment in his favor. The court found Plaintiff’s argument regarding liability under Real Property Law § 231 to be unavailing, as the operation of a nightclub was not an unlawful trade or business.

Regarding Plaintiff’s claim against the security company, the court examined prior case law and found that in a litany of cases involving an individual attempting to impose liability on a company hired to provide security, courts have consistently held that the security company owes no duty to a plaintiff who has been injured at the premises. Consistent with precedent, the court held that a party may not seek damages for negligent security that arises from a contractual obligation not involving the party. Since the oral contract for the security work was between OBMP-NY and 5Points, the court granted summary judgment to the security company.

In defense of Plaintiff’s claims against it, OBMP-NY argued that it acted reasonably in providing security at the premises and should not be held liable for the unforeseen criminal acts of a third party. As such, OBMP-NY maintained that they met their duty of protecting Plaintiff from the risks of foreseeable harm and summary judgment should be granted in its favor. In opposition, Plaintiff countered that the security provided for the bar was inadequate, which led to Plaintiff’s injuries. In support of this argument, Plaintiff submitted an affidavit from a security expert, who opined that the security services were wholly inadequate for a number of reasons. OBMP-NY did not submit an expert affidavit to refute Plaintiff’s position.

The court found that Plaintiff’s expert affidavit created issues of fact as to whether the security precautions taken by OBMP-NY were reasonable. The affidavit provided evidence that there were prior violent episodes at the bar and that the area surrounding the bar had a high crime rate. The court held that the issues of fact needed to be decided by the jury as to whether the security in place was adequate and whether the resulting injuries were foreseeable. The court found sufficient evidence to allow the case to proceed to trial and denied OBMP-NY’s motion for summary judgment.

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