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New York Partners Obtain Pre-Answer Dismissal for Brooklyn Property Owner

New York City Partners John V. Barbieri and Anna M. Hadjitheodosiou prevailed in a Kings County Supreme Court action filed by a former patron attending the co-defendant/tenant’s popular nightclub that is located on our client’s property in Brooklyn, New York. In this matter, John and Anna defended our client, the owner of the physical premises/property in which the nightclub was situated, against Plaintiff’s claims of negligent security after she made allegations of assault and battery that occurred on the premises.

The incident at hand involves a co-defendant/assailant who allegedly assaulted Plaintiff. In her Complaint, Plaintiff claimed that our client and its agents committed the assault; allowed the assault to occur due to inadequate security; negligently managed, maintained, controlled, operated, repaired and supervised the premises; and, negligently hired, trained, retained and supervised those identified as being involved with the accident. It was alleged that Plaintiff, as a result of this incident, suffered serious physical, emotional and psychological injuries, and also sought punitive damages. Plaintiff filed suit against the assailant, the co-defendant/tenant and our property owner client.

Our attorneys filed a motion to dismiss all causes of action against our client pursuant to CPLR 3211(a)(1) and (7) on the grounds that a defense was founded upon the documentary evidence and that Plaintiff had failed to state a cause of action. Our attorneys’ defense included surveillance video evidence, the client’s lease agreement countersigned by the co-defendant/tenant, and affidavits from representatives of both the co-defendant and our client that prove our client was an out-of-possession landlord with no control over the daily operations of the nightclub, including security. Surveillance video ultimately showed that the co-defendant/assailant was not a security guard but rather a random would-be patron of the co-defendant/tenant who was denied service at the nightclub bar, exited the premises and thereafter assaulted the Plaintiff following a brief conversation.

John and Anna successfully argued that our evidence supported the argument that the altercation incident was not foreseeable. Namely, our evidence supported the argument that there were no prior similar incidents or any criminal incidents occurring on the premises, and the affidavits in which both individuals affirmed that our client had no participation in the day-to-day activities of the nightclub, including security. As such, our attorneys argued that the primary issue was that we had clearly demonstrated our client was an out-of-possession landlord, and regardless of any other foreseeability issues, our client should therefore be dismissed from the case as a matter of law.

Following two rounds of oral arguments approximately three months apart, our attorneys demonstrated that our motion should be granted. From the bench, the Court granted our attorneys’ motion to dismiss, issuing an Order stating that our client was an out-of-possession landlord and therefore was not liable for intentional torts of a non-party tortfeasor. Accordingly, the Court dismissed all claims and cross-claims against our client.

John concentrates his practice on premises liability, non-medical and medical professional liability, labor law, products liability and insurance coverage. He has extensive experience in all aspects of personal injury, property damage, construction liability and insurance defense litigation.

Anna focuses her practice on defending a wide array of businesses in general litigation and business litigation matters. She handles complex cases involving breach of contract, negligent security, products liability and construction liability claims.