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