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New York County

This was an inadequate security case in which the plaintiff UPS delivery person, age 41 at the time, contended that the defendant co-op complex negligently failed to provide an adequate number of guards which would be obtained from the third-party defendant security company and negligently failed to clearly communicate to the security workers that they should never leave the lobby area.

The plaintiff contended that as a result, two assailants gained entry when he and other tenants were let in, resulting in the assailants following him to the top floor, accosting the plaintiff and the plaintiff being shot in the neck. The plaintiff was left an incomplete quadriplegic. The plaintiff had also named the security company as a defendant. The Court held that based upon contract language which reflected that the agreement was not intended to benefit any third parties, there was no duty running from the security company to the plaintiff and the direct case of the plaintiff against the security company, which remained as a third-party defendant, was dismissed prior to trial.

The plaintiff contended that there was a significant history of criminal activity in the six-building complex and that the prior incidents included assailants gaining access through "tailgating." The plaintiff contended that the guards are instructed to only permit individuals with keys or those "buzzed in" by tenants to pass through the lobby and that when a guard is not present, assailants have been known to follow a legitimate visitor or tenant inside though such "tailgating." The plaintiff contended that when he arrived with his packages and was permitted in by a tenant, the assailants followed him because the guard was not present to stop them. The plaintiff contended that the two assailants entered the elevator with him and a few tenants, that the tenants exited before the plaintiff reached his top floor destination, and that the assailants followed him off the elevator. The plaintiff contended that one of the assailants threatened him with a gun and that when a struggle ensued, he was shot in the neck.

The evidence disclosed that one guard was assigned to each of the six buildings and that there were also a roving guard and a supervisor. The security company contended that its duties included inspecting the relatively large grounds of the complex.

The plaintiff’s security expert contended that in view of such duties and the large area which required monitoring, the defendant co-op board should have obtained additional guards and that the failure to do so resulted in the lobby being periodically unattended. The landlord denied that the six lobby guards were instructed to patrol the grounds and contended that the guards’ duties required them to be at the lobby door at all times. The plaintiff’s expert related that the written instructions given to the guards indicated that they should stay near the lobby door and also contained rules and regulations prohibiting certain activities out of doors on the grounds.

The plaintiff’s expert contended that the sole roving guard on duty during the daytime incident had duties which included inspecting p 7 3 all of the four parking lots, the outer grounds and the stairwells of each of the buildings twice a day. The plaintiff’s expert contended that it was clear that one individual could not easily accomplish so many tasks and that since the rules made no differentiation as to the guards which should enforce such rules, they were very ambiguous as to the duties which were expected of each guard and were inadequate. The plaintiff’s expert further maintained that given the criminal history of the building, an additional two guards would be required to accomplish all of the required tasks. The security company contended that it had requested that the co-op board authorize its use of additional guards and that it declined. The defendant denied receiving such requests. The plaintiff’s expert also maintained that although the complex converted to co-op in ________, and despite a history of criminal activity , the co-operative board had never reviewed its security procedures.

The plaintiff was rendered a quadriplegic in the mid-chest region as a result of the shooting. He had partial use of his fingers, some use of the remainder of his dominant hand and no use of the remainder of the non-dominant hand. The plaintiff has the use of his arms. The plaintiff related that he has been retained by the employer in a part-time sedentary job and is earning approximately 1/3 of his former salary. The plaintiff made a future lost wage claim of approximately $________.

The plaintiff’s specialist in physical rehabilitative medicine and neurosurgeon each contended that the plaintiff has reached the pinnacle of his recovery. The neurosurgeon contended that the plaintiff will permanently be unable to control his bladder, or bowel functioning. The plaintiff’s treating psychiatrist contended that the plaintiff has not, from an emotional standpoint, accepted his limitations. The psychiatrist related that the plaintiff had always placed great significance on his physical prowess and that the injury has left him very depressed. The psychiatrist related that the plaintiff, who drives with a specialized vehicle, will travel to locations without giving proper consideration to the difficulties moving about when he reaches his destination. The psychiatrist also contended that the plaintiff, who was separated at the time of the accident and divorced as of the time of trial, is very embarrassed because of his deficits and is afraid to date. The psychiatrist offered a guarded prognosis. The case settled at the close of the plaintiff’s case for $________ with the co-op board contributing $2.9 million and the security company $1.1 million.

Plaintiff’s security expert: Leslie Cole from Vauxhall, N.J.

Plaintiff’s psychiatrist: Robert Derman from Port Jefferson, N.Y.

Plaintiff’s specialist in physical rehabilitative medicine: Joseph Carfi from L.I. Plaintiff’s neurosurgeon: M. DiMancescu from Garden City. Plt: Zombrek. Index no. ________/89; Judge Burton Sherman, 12-15-92. Attorney for plaintiff: Nicholas Papain of Sullivan & Liapakis in Manhattan.

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