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There was insufficient testimony of a history of physical violence …cont

Upon review and consideration of the defendant’s motion, the plaintiff’s affirmation in opposition and the defendant’s reply thereto this court finds that the defendant established, prima facie, that the conduct of the accused was not foreseeable. The deposition testimony and police reports submitted by the defendant are not sufficient to establish the foreseeabilty of the shooting. The courts have held that, “Third-party criminal conduct is considered foreseeable as a matter of law where it is “reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location”.

Whether the prior criminal activity occurring within the subject premises provides sufficient evidence “to establish that it is reasonably foreseeable that the tenants are at risk of harm depends on a variety of factors, including the location, nature and extent of those previous criminal activities and their similarity, proximity or other relationship to the crime in question.

Here, it is clear that even if the testimony regarding drug sales, which was all based upon hearsay, was true, loitering by transients and people who didn’t belong in the house as well as suspected drug sales are insufficient to make the shooting a foreseeable event or to have put the owner on notice that there was a possibility of a violent shooting. There is no proof in the record as to the reason for the shooting and only newspaper speculation that it was the result of a drug deal gone bad.

Further, despite the allegations of drug dealing from the house, the victim’s shooting by an assailant who fired from an adjoining property was an unforeseeable and unexpected event which could not have been anticipated based on the level of criminal activity which was alleged at the house. The defendant had no reason to anticipate a possible shooting incident at the house. This event was not reasonably predictable as there were no prior occurrences of the same or similar criminal activity at the location. There was insufficient testimony of a history of physical violence or assaultive behavior other than one incident of a speculative assault.
In opposition to the defendants’ prima facie demonstration of entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact that the defendants had the ability and opportunity to control the unexpected shooting through the exercise of reasonable measures, and that the failure to have done so was a proximate cause of the injuries alleged. Further the police complaint reports submitted by the plaintiff with respect to a complaints at Farmers Boulevard for criminal mischief, a complaint for child abandonment, a complaint for a US Army issued handgun with ammunition found on the premises and a complaint for a violation of an order of protection are insufficient to have put defendants on notice or to raise a question of fact as to whether defendants should have anticipated a risk of harm from an act of violence or taken precautionary measures to protect against such an act or whether the owner knew or should have known of the probability of conduct on the part of a third party which was likely to endanger the safety of those lawfully on the premises.

Although defendant did not cross-move for summary judgment, upon searching the record the complaint against the defendant is dismissed for the same reasons.

Accordingly, based upon the foregoing it is hereby, ORDERED, that the defendant’s motion for summary judgment is granted and the plaintiffs’ complaint with respect to the defendants is dismissed and it is further ORDERED, that the branch of the motion for an order dismissing the plaintiffs’ claim for punitive damages is denied as academic.

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