In an action, inter alia, to recover damages for wrongful death, etc., the plaintiff appeals, as limited by his notice of appeal and brief, from so much of (1) an order of the Supreme Court, Orange County (Slobod, J.), dated January 8, 2009, as granted that branch of the motion of the defendant Old Navy, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it, and denied that branch of his cross motion which was for leave to amend the bill of particulars as to Old Navy, Inc., and (2) a judgment of the same court entered February 5, 2009, as, upon the order, is in favor of Old Navy, Inc., and against him, dismissing the complaint insofar as asserted against that defendant.
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This opinion is uncorrected and subject to revision before publication in the Official Reports.
PETER B. SKELOS, J.P., FRED T. SANTUCCI, DANIEL D. ANGIOLILLO and CHERYL E. CHAMBERS, JJ.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is reversed insofar as appealed from, on the law, the complaint is reinstated insofar as asserted against the defendant Old Navy, Inc., that branch of the motion of Old Navy, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it is denied, that branch of the plaintiff's cross motion which was for leave to amend the bill of particulars as to Old Navy, Inc., is granted, and the order is modified accordingly; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a]).
In March 2004 the plaintiff's decedent, Timothy Ruiz, was employed as a manager by the defendant Old Navy, Inc. (hereinafter Old Navy), whose store was located in the Galleria at Crystal Run. As a result of anonymous threats against Ruiz and acts of vandalism against his car, Ruiz was escorted from the store to his car in the mall parking lot by loss prevention agents employed by Old Navy. A specific parking lot was used in order to take advantage of a closed circuit television camera owned by the defendant Filene's, Inc., and located at the mall exit nearest the American Cafe. On March 13, 2004, the defendant Kevin Griffin, who reportedly was jealous of Ruiz's friendship with a co-worker at Old Navy, fatally shot Ruiz as Ruiz was walking to his car. It is undisputed that, just prior to the shooting, one of the two loss prevention agents escorting Ruiz stopped at his own vehicle to retrieve his cigarettes, and the other agent waited for that agent while Ruiz walked alone ahead to his car.
The plaintiff commenced this wrongful death action alleging, inter alia, that Old Navy attempted to protect the decedent but did so negligently and increased the risk of harm to the decedent.
On a prior motion by Old Navy for summary judgment dismissing the complaint insofar as asserted against it, the Supreme Court denied the motion with leave to renew upon completion of discovery (see CPLR 3212[f]). On an appeal taken by Old Navy, this Court affirmed (see Ruiz v Griffin, 50 AD3d 1005). Following discovery, Old Navy again moved for summary judgment dismissing the complaint insofar as asserted against it. The Supreme Court, inter alia, granted the motion and entered judgment in favor of Old Navy and against the plaintiff dismissing the complaint insofar as asserted against it, determining that the sole proximate cause of the decedent's death was Griffin's murderous act. The plaintiff appeals. We reverse the judgment insofar as appealed from.
The elements of common-law negligence are a duty owed by the defendant to the plaintiff, a breach of that duty, and a showing that the breach of that duty constituted a proximate cause of the injury (see Ingrassia v Lividikos, 54 AD3d 721; Vetrone v Ha Di Corp., 22 AD3d 835; Gordon v Muchnick, 180 AD2d 715). "[T]he scope of the duty owed by the defendant is defined by the risk of harm reasonably to be perceived" (Sanchez v State of New York, 99 NY2d 247, 252; see Palsgraf v Long Is. R. R. Co., 248 NY 339, 344; Ingrassia v Lividikos, 54 AD3d at 724; Demshick v Community Hous. Mgt. Corp., 34 AD3d 518, 520; Vetrone v Ha Di Corp., 22 AD3d at 837).
"[E]ven when no original duty is owed to the plaintiff, once a defendant undertakes to perform an act for the plaintiff's benefit, the act must be performed with due care for the safety of plaintiff" (Kreindler, Rodriguez, Beekman and Cook, New York Law of Torts § 6:14 [14 West's NY Prac Series 1997]; see Parvi v City of Kingston, 41 NY2d 553, 559; Demshick v Community Hous. Mgt. Corp., 34 AD3d at 518; Mirza v Metropolitan Life Ins. Co., 2 AD3d 808; Gordon v Muchnick, 180 AD2d at 715; Kaplan v Dart Towing, 159 AD2d 610; Restatement [Second] of Torts § 323). "When the intervening, intentional act of another is itself the foreseeable harm that shapes the duty imposed, the defendant who fails to ...