You are here: / / REJECTING THE 2ND DEPARTMENT’S CRITICISM OF THE 1ST DEPARTMENT’S...
, ,

REJECTING THE 2ND DEPARTMENT’S CRITICISM OF THE 1ST DEPARTMENT’S THIRD-PARTY-ASSAULT JURISPRUDENCE, THE 1ST DEPARTMENT HELD THE BROKEN DOOR THROUGH WHICH THE ASSAILANTS GAINED ACCESS TO THE BUILDING WHERE PLAINTIFF’S DECEDENT WAS SHOT AND KILLED WAS NOT A PROXIMATE CAUSE OF THE SHOOTING BECAUSE THE ASSAILANTS WOULD HAVE FOUND A WAY TO ENTER THE BUILDING EVEN IF THE DOOR LOCK WERE WORKING (FIRST DEPT).

The First Department determined the landlord, New York City Housing Authority (NYCHA), was not liable for the shooting death of plaintiff’s decedent, Murphy, despite conclusive video evidence the locking mechanism on the door the assailants used to enter plaintiff’s decedent’s building was broken. Disagreeing with the Second Department’s characterization of the First Department’s jurisprudence in similar third-party assault cases, the First Department held that the assailants were intent on shooting plaintiff’s decedent and would have gained entrance to the building even if the locking mechanism worked. Therefore the assailants’ actions constituted the sole proximate cause of plaintiff’s decedent’s death:

We disagree with the [Second Department’s] implication that under this Court’s jurisprudence the fact that a victim was targeted obviates the need for any inquiry into the security measures in place at the subject premises. Indeed, we are aware of no case in the First Department that suggests that a landowner would avoid liability even if minimal precautions would have actually prevented a determined assailant from gaining access. In reality, however, that is hardly ever the case. In Buckeridge v Broadie (5 AD3d 298, 300), … the assailants were “sophisticated” and disguised themselves to gain entry. In Cerda v 2962 Decatur Ave. Owners Corp. (306 AD2d 169, 170 [1st Dept 2003]) … the plaintiff was assaulted by a “team of assassins.” … [C]ases confirm that this Court has not abandoned the notion that more than the simple fact that a victim was targeted is necessary to shield a property owner from liability. … [T]he cases confirm that, given the minimal steps a landowner is required to take to secure premises, it has no duty to outwit or outthink those who are determined to overcome those steps.

The record establishes that Murphy’s killers were intent on gaining access to the building. … [C]onsidering that at least one other person, by all appearances oblivious to the brouhaha … , entered the building at the same time, it does not take a leap of the imagination to surmise that [the assailants] would have gained access to the building by following another person in or forcing such a person to let them in. This negates the unlocked door as a proximate cause of the harm that befell Murphy, and makes her assailants’ murderous intent the only proximate cause. Estate of Murphy v New York City Hous. Auth., 2021 NY Slip Op 02246, First Dept 4-13-21

 

You might also like
ACTIONS PURSUANT TO NEW YORK CITY’S “FREELANCE ISN’T FREE ACT” (FIFA) WHICH ALLEGED DEFENDANTS FAILED TO PAY PLAINTIFFS-FREELANCERS SURVIVED MOTIONS TO DISMISS (FIRST DEPT). ​
THE REPEAL OF THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) WAS NOT RETROACTIVE; THEREFORE DEFENDANT’S NURSING HOME WAS IMMUNE FROM SUIT STEMMING FROM PLAINTIFF’S DECEDENT’S DEATH FROM COVID-19 (FIRST DEPT).
Even Though the Insured Was Faultless, the “Additional Insureds” Endorsement Was Triggered—The Endorsement Covered Acts or Omissions by the Insured Which “Caused” the Underlying Injury Without Any Requirement that the “Cause” Entail Negligence—Here the Insured Was Not Negligent, but the Injury Was “Caused” by Insured’s Non-Negligent Acts—Therefore the Additional Insureds Were Covered Under the Policy
POSSIBLE APPLICABILITY OF THE CONSCIOUS IGNORANCE DOCTRINE PRECLUDED SUMMARY JUDGMENT IN THIS MUTUAL MISTAKE ACTION.
JURY SHOULD HAVE BEEN INSTRUCTED TO CONSIDER A LESSER INCLUDED OFFENSE AND AN ADVERSE INFERENCE INSTRUCTION SHOULD HAVE BEEN GIVEN CONCERNING SURVEILLANCE PHOTOS DESTROYED BY THE POLICE, CONVICTION REVERSED (FIRST DEPT).
THE ARBITRATOR-PANEL DID NOT HAVE THE AUTHORITY TO RECONSIDER A PARTIAL FINAL AWARD IN THIS DISPUTE BETWEEN AN INSURER AND THE INSURED, THE PANEL INITIALLY FOUND THAT A $10 MILLION SETTLEMENT PAID BY THE INSURED WAS NOT A COVERED LOSS, BUT SUBSEQUENTLY REVERSED ITSELF (FIRST DEPT).
DEFENDANT’S EXPERT’S AFFIDAVIT ITSELF RAISED QUESTIONS OF FACT AND WAS OTHERWISE DEFICIENT IN THIS LABOR LAW 240(1) LADDER FALL CASE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). ​
PLAINTIFF ALLEGEDLY SLIPPED AND FELL AFTER STEPPING ON A BOTTLE CAP; PLAINTIFF’S LABOR LAW 241 (6) AND 200 CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE PROPERTY OWNER WAS NOT LIABLE FOR THE ACTIONS OF THE INDEPENDENT CONTRACTOR;... A THEORY ASSERTED FOR THE FIRST TIME IN OPPOSITION TO DEFENDANT’S SUMMARY...