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Doe v. Turnmill LLC

Supreme Court, New York County

August 1, 2017

Jane Doe, Plaintiff
v.
Turnmill LLC, BELLEVUE MEN'S SHELTER, CITY OF NEW YORK, NEW YORK CITY HEALTH & HOSPITALS CORP., NEW YORK CITY DEPARTMENT OF HOMELESS SERVICES, and NEW YORK CITY DEPARTMENT OF HEALTH & MENTAL HYGIENE, Defendants.

          LEONARD F LESSER, Renee Simon Lesser, SIMON LESSER PC., For the plaintiff

          ROBERT H GOLDBERG, GOLDBERG & CARLTON, PLLC., For defendant

          Turnmill LLC Zachary W. Carter, Corporation Counsel, For Municipal Defendants, By Kenisha C. Calliste, Esq..

          HON.W. FRANC PERRY, J.S.C.

         The following papers were read on this motion to Dismiss Complaint

         Notice of Motion/Petition/O.S.C. - Affidavits - Exhibits A through C ECFS DOC No(s). 1-17

         Answering Affidavits and Memorandum of Law - Exhibits A through I ECFS DOC No(s). 1-3, 1-19

         Replying Affidavits ECFS DOC No(s). 1-10

         This is an action to recover damages for personal injuries allegedly sustained on April 11, 2015 at approximately 7:45 p.m. when plaintiff, [1] a patron of the Turnmill Bar, located at 119 East 27th Street in New York City, was assaulted and raped by Rodney Stover. [2] Defendants Bellevue Men's Shelter, City of New York, New York City Health & Hospitals Corp., New York City Department of Homeless Services and New York City Department of Health & Mental Hygiene, (hereinafter "municipal defendants"), seek an Order pursuant to CPLR §3211(a)(7), dismissing the complaint and cross-claims. Defendant Turnmill LLC, (hereinafter "Turnmill") and plaintiff oppose the motion.

         In her Notice of Claim and Complaint, plaintiff alleges that she sustained damages as a result of defendant Turnmill's breach of its duty to take precautions to protect its lawful patrons from dangerous intruders; plaintiff further alleges that the municipal defendants failed to protect her from a Level-3 violent, predicate sex offender who was residing at the Bellevue Men's Shelter at the time of this incident. Plaintiff alleges that the municipal defendants knew or should have known that Stover had violent and dangerous propensities and posed a clear threat to others and that municipal defendants' failure to take reasonable steps to protect plaintiff, led to the sexual assault, battery and rape of plaintiff inside the women's restroom at the Turnmill Bar during prime business hours.

         Municipal defendants contend that plaintiff fails to state a cause of action; they argue that they were not the owners of the property where plaintiff was assaulted and raped and therefore, do not owe plaintiff a duty in a proprietary capacity. Municipal defendants contend further that they cannot be liable to plaintiff for failing to protect her from the assault committed by Stover because plaintiff has not alleged facts sufficient to plead a special duty owed to plaintiff. Municipal defendants argue that because they did not have a special relationship with plaintiff, they are not liable to her for the alleged negligent performance of a governmental function and the complaint and any cross-claims against them must be dismissed.

         In opposing the motion, plaintiff contends that she has sufficiently pled the necessary allegations to support her negligence claims against the municipal defendants. Plaintiff argues that in allowing known violent sex offenders to reside in a homeless shelter, located in a residential community without proper monitoring or screening, municipal defendants violated 18 NYCRR §491.4(b)(1) which provides that an "operator shall not accept, except on an emergency basis, nor retain any person who: (1) causes danger to himself or others or interferes with the care and comfort of other residents;". Plaintiff contends that determination of the issue of whether municipal defendants owed plaintiff a duty of care must await discovery related to whether defendants had actual or constructive notice of Stover's propensity to harm others while a resident at the Bellevue Men's Shelter.

         STANDARD OF REVIEW/ANALYSIS

         In determining a motion to dismiss the complaint for failure to state a cause of action, the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory". Fox v. Marshall, 88 A.D.3d 131, 134 (2d Dept. 2011), citing, Leon v. Martinez,614 N.Y.S.2d 972 (1994). "Here, the facts alleged in the complaint clearly elicit a visceral response, and 'the human desire that there should be some recovery for this tragedy is understandable' (Eiseman v. State of New York,518 N.Y.S.2d ...


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