Wade Clark Mulcahy LLP

New York property owners generally have a common law duty to protect those lawfully on their premises from foreseeable criminal acts committed by third parties, including tenants and their guests. However, this duty is not absolute, and issues of notice and control can govern the outcome of such claims under New York law.

The Appellate Division, Second Department addressed these issues and found for property owners in two recent cases. In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2023/07/King-v.-Diplomat-Hospitality-Group-LLC.pdf">King v. Diplomat Hospitality Group, LLC</a></em>, plaintiff alleged that he was injured in an altercation with an intruder who had entered his hotel room through a first-floor window. The trial court dismissed his claim against the hotel and the Second Department affirmed, noting that the "the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location." The Court ruled in the hotel’s favor because plaintiff failed to show that the hotel had notice of prior similar criminal activity at the location.

In<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2023/07/Duncan-v.-Black-Veterans-for-Social-Justice-Inc.pdf">Duncan v. Black Veterans for Social Justice, Inc.</a>,</em> the defendant provided housing assistance for unemployed veterans and plaintiff was injured in an altercation with another tenant. Plaintiff alleged that the defendant was negligent in placing the plaintiff and the attacker in the same apartment. In affirming the trial court’s award of summary judgement for defendant, the Second Department observed the general rule that a landowner has no duty to control the conduct of third persons so as to prevent them from harming others. The Court found that the defendant did not have control over its tenants and therefore plaintiff’s claim should be dismissed.

The <em>Duncan</em> and <em>King</em> cases serve as a reminder that landowner liability for criminal activity depends on several factors. Insurers and defense attorneys should investigate issues of control and notice and be prepared to seek dismissal where there is no notice of foreseeable criminal activity, and the owner/landlord has no control over the perpetrator.

Thank you to Alexander Rabhan for his contribution to this post. Please contact <a href="agibbs@wcmlaw.com">Andrew Gibbs</a> with any questions