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DEFENDANT HOMEOWNER DID NOT HAVE THE OPPORTUNITY TO CONTROL THE CONDUCT OF HER ESTRANGED HUSBAND WHO ALLEGEDLY ASSAULTED PLAINTIFF IN DEFENDANT’S HOME; THE SOLE PROXIMATE CAUSE OF PLAINTIFF’S INJURIES WAS THE ESTRANGED HUSBAND’S ACT; DEFENDANT HOMEOWNER’S MOTION TO DISMISS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant homeowner’s (Portelli’s) motion to dismiss the negligence action against her based upon an assault upon plaintiff by Portelli’s estranged husband at Portelli’s home should have been dismissed:

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained as the result of an assault by the defendant Robert DiGesu that took place at a house owned by his estranged wife, the defendant Susan M. Portelli. * * *

Homeowners have a duty to act in a reasonable manner to prevent harm to those on their property … . This includes “the duty to control the conduct of third persons on their premises when the homeowners have the opportunity to control such persons and are reasonably aware of the need for such control” … .

Portelli did not have the opportunity to control DiGesu’s conduct … , nor would it have been reasonable for her to have known of the need to control DiGesu’s conduct so as to protect the plaintiff from DiGesu’s unexpected assault … . Portelli’s alleged acts or omissions were not a proximate cause of the plaintiff’s injuries but “merely furnished the conditions for the event’s occurrence” … . The sole proximate cause of the plaintiff’s injuries was DiGesu’s assault … . Maruca v DiGesu, 2022 NY Slip Op 04719, Second Dept 7-29-22

Practice Point; Homeowners have a duty to act reasonably to prevent harm to those oh their property. Here, however, defendant homeowner did not have the opportunity to control her estranged husband’s conduct at the time he allegedly assaulted the plaintiff in defendant’s home. Therefore the sole proximate of plaintiff’s injuries was the estranged husband’s act and defendant’s motion to dismiss the complaint should have been granted.

 

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