Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

CB v. Howard Security

Supreme Court of New York, First Department

January 4, 2018

CB by His Mother and Natural Guardian Lateaqua Suarez, et al., Plaintiffs-Respondents-Appellants,
v.
Howard Security, et al., Defendants-Appellants-Respondents.

         Cross appeals from the order of the Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about November 29, 2016, which denied defendants' motions for summary judgment dismissing the complaint as against them and plaintiffs' motion for summary judgment on the issue of liability and for a spoliation charge.

          Carroll, McNulty & Kull LLC, New York (Frank J. Wenick of counsel), for Howard Security, appellant-respondent.

          Mauro Lilling Naparty, LLP, Woodbury (Matthew W. Naparty and Kathryn M. Beer of counsel), for Sammon-Build Center Housing Development Fund Corporation and Tolentine Zeiser Community Life Center, appellants-respondents.

          Philip Newman, P.C., Bronx (Paul Bibuld and Michael Karnes of counsel), for respondents-appellants.

          Rolando T. Acosta, P.J., Sallie Manzanet-Daniels, Judith J. Gische, Barbara R. Kapnick, Marcy L. Kahn, JJ.

          ACOSTA, P.J.

         Plaintiff and his mother, plaintiff Lateaqua Suarez, were living in a domestic violence shelter owned and operated by defendants Sammon-Build Center Housing Development Fund Corporation and Tolentine Zeiser Community Life Center (collectively, Sammon). Defendant Howard Security had been hired to provide, among other things, security for the residents of the shelter. On November 8, 2011, CB was being returned to the shelter by his father, Bobby B., when a man later identified as Mauricio Acosta approached Bobby B. for his jacket. Acosta pulled a gun, and in the ensuing struggle, the gun discharged, striking CB and leaving the four-year-old boy paralyzed from the waist down.

         CB and his mother commenced this action against Sammon and Howard Security, alleging that defendants breached their duty of care to CB by failing to bring him into the premises to safety. The motion court denied both plaintiffs' and defendants' motions for summary judgment. We agree that material issues of fact exist. We modify solely to grant plaintiffs an adverse inference charge for defendants' failure to produce the security guards' log book.

         Facts and Procedural Background

         Sammon's "Statement of Client Rights and Client Code of Conduct" require that all children be in their units with a reasonable responsible adult by 9:00 p.m. This requirement was reiterated in the "Operating Rules, " which stated that residents were responsible for the safety of their children and that children must have adult supervision at all times. Residents who knew their children would be outside the premises following curfew were required to obtain permission from Sammon's director.

         "Security Post Orders" provided for two "fixed stations of surveillance, " the guard booth and the indoor surveillance area. Two guards were to be on duty at all times, one stationed in each location. The guards rotated positions every hour. The guard in the booth in front of the premises was not permitted to leave the booth while on post. Clients were required to sign in and out of the premises. Children were not allowed to exit the site alone, even to see an adult whom they claimed was waiting for them, without the head of household (HOH) escorting them out of the gate. When entering, children were required to stop at the security gate to find out if their parent was at home. If the parent was there, the child could proceed to the unit, except that children under 10 were required to wait to be picked up by their parent. If the parent of a child under 10 was out, the child was permitted to wait in the recreation room. After office hours, guards were required to telephone on-call staff for instructions. The Security Post Orders also provided that if a child was in close proximity to a fight, the guard could "make a judgment call and attempt to move the child out of harm[']s way."

         CB's mother (Suarez) testified that on the date of the incident, CB had been visiting with his father, Bobby B. for the evening. Bobby B. brought CB back to the shelter around 9:30 p.m., after curfew. Suarez received a call from the security guard asking her to pick up CB at the gate. Suarez responded that she was taking care of the baby and would be "down in a few." Suarez looked out the window and saw Bobby B. and CB standing outside the gate.

         The security guard called Suarez again to remind her that CB was waiting downstairs. She repeated that she was caring for the crying baby and would be down later. Approximately five minutes later she went downstairs to retrieve her son.

         When she arrived downstairs, Suarez saw Bobby B. and Acosta grappling with each other up against the gate, next to the guard booth. CB's hand was pressed against the locked gate; one guard "was walking out of the booth and the other [guard] was just in the booth." Acosta's gun discharged, and the bullet struck CB. [1]

         Acosta testified that he approached Bobby B. with his gun drawn and told Bobby B. to give him the jacket. Bobby B. refused, reached for the gun, and began wrestling with Acosta. During the struggle, the gun discharged, and CB was struck by the bullet.

         Crystal Standish, the shelter's director, testified that Sammon had entered into a contract with Howard Security to provide security for the premises. The guards were unarmed and were not to intervene in any altercations outside of the building. Standish described Howard Security's responsibilities as generating incident reports; signing clients into and out of the site; giving them their keys when they entered and taking back their keys when they exited; noting the number of children the client returned with, particularly if any were missing; responding to clients' calls for assistance, and doing rounds: vertical and inner and outer perimeter. Standish noted that these rounds were ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.