Shootout at the Poonam on Park Hill Ave: Was Security Lax and Incident Foreseeable?

This was originally posted on the SGR Blog.

Terry Kellman sued Poonam Apts. LLC, the owner of 180 Park Hill Avenue on Staten Island, and Jelene Greenfield, the building’s managing agent, for injuries sustained when he was shot at the building by Angelo Nesemi.

Kellman asserted two causes of action for negligence. In the second negligence claim, he asserted that Poonam and Greenfield were negligent in failing to take proper precautions for his safety, hiring, screening, training, supervising of its employees, and failing to adopt appropriate procedures for the protection of visitors. Poonam and Greenfield moved to dismiss the complaint.

Kellman testified at his deposition that he was staying in an apartment of Jessica Jones, a friend, whose lease provided that he was permitted to stay in the apartment. He testified that the main entrance to the building was never locked because the locks were broken.

Kellman testified that, on the day of the accident, at approximately 3:30 in the morning, he left the apartment, went down the elevator, and intended to leave the building to walk his sister home. He testified that, when he exited the elevator, he began to walk down a hallway toward the lobby when he heard Orlando Martinez, who he knew from the neighborhood, call his name from the other end of the hallway. Martinez did not live in the building, and Kellman had not seen him in the building before. Martinez was with another person, Angelo Nesemi, who Kellman did not know.

Kellman testified that, when he approached the two men, he did not say a word to them, and they said nothing to him, but that the two men seemed angry. When he was approximately 15 to 20 feet from the two men, Kellman saw that Nesemi had a gun, and he turned around to run. Nesemi then shot Kellman in the left buttock. He did not know why the two men were in the building or why Nesemi shot him.

Kellman was not aware of anyone previously being shot or fighting in the building. But Martinez and Nesemi were involved in another shooting at a nearby building, 280 Park Hill Avenue, that same day, occurring just before his incident.

Keith Haymes testified at his deposition that Poonam hired him as a security consultant. His responsibilities included making security recommendations for the property, monitoring and saving any video of incidents at the property, and serving as a liaison with the police about those incidents. Haymes visited the property several days each week and met with the manager, Daniel Bagliore, to discuss any issues. Kellman made his security recommendations by email but did not know if the email account he used still existed.

Haymes testified that there are six ways to enter the subject building. One such method is the doors to the main entrance that leads into the lobby. The main entrance consists of a door to the building that leads into a vestibule and then another door from the vestibule to the main lobby. The building had a security camera in the vestibule of the main entrance but no intercom. The locks to the main building door were broken and repaired a number of times but then never repaired after being broken at some point. Kellman had discussions with Bagliore about the broken locks to the doors during the period 2011 to 2014 or 2015. He could not recall any time when the vestibule door was ever locked. The second entrance from the parking lot was also never locked, and that the four entrances in the back of the subject building were never locked.

With regard to criminal activity, Haymes testified that Poonam and Greenfield kept records of criminal activity perpetrated by residents and that Bagliore might have kept records of other criminal activity that occurred on the premises. He was not aware of any violent crimes that occurred on the premises in 2016 and that there were no shootings there at any time prior to this incident. Haymes was aware of complaints of drug sales on the premises or nearby. Haymes testified that locking the building doors would have provided greater security to the building’s residents.

Daniel Bagliore submitted an affidavit in support of the motion. Bagliore is the director of compliance for Poonam; the units in the building are covered by Section 8 of the Housing Act of 1937, and tenants are required by their leases and Section 8 to obtain management’s written consent before anyone else may move into an apartment in the building. However, Bagliore did not reference any specific portion of Section 8, nor did he provide a copy of Jones’ lease. Nevertheless, he stated that Jones did not obtain such consent. He stated that there were no prior shootings at the premises but that there was a shooting nearby on the same day as the Kellman incident involving the same assailants.

Donald Greene, who also submitted an affidavit in support of the motion, had been the president of a security management consulting firm for 23 years, and his experience also included service as a special agent with the FBI. Greene opined that the shooting was a premeditated crime, based in part on the fact that Kellman knew Martinez; the alleged assailants did not speak with him before the shooting; the assailants took nothing of value, and the assailants were not in disguise. Green acknowledged that a locked door might deter reasonable incidents but would not deter a highly motivated person with a specific target.

Dr. Robert McCrie, who submitted an affidavit in opposition to the motion, is a professor of security management and deputy chair of the Department of Security, Fire, and Emergency Management of John Jay College of Criminal Justice. He is also a certified protection professional and has worked in the security field for over 40 years. McCrie referenced several laws that he opined may apply to this action, but he did not apply them to the facts of the case. McCrie opined that the lack of functioning locks was a departure from acceptable security standards and procedures and that the departure was the proximate cause of the incident.

McCrie also stated that he collected and evaluated data from the 120th Precinct of the NYPD and NYC Department of Correction. And, according to NYPD CompStat data for the “three years prior to the incident [there were] an average of eight murders/non-negligent manslaughter were recorded, 23 rapes, 208 robberies, and 276 felonious assaults”.

A property owner has common law a duty to maintain minimal security measures to protect tenants and their guests from foreseeable criminal acts by others in the property owner’s building. The foreseeability of a criminal act that allegedly caused an injury depends upon the location, nature, and extent of those previous criminal activities and their similarity, proximity, or other relationship to the crime in question.

Poonam and Greenfield provided no evidence of crimes in the area, other than the testimony of Haymes and Bagliore, who stated that they were not aware of any prior shootings at the premises. Conversely, Kellman submitted crime statistics of the three years preceding the incident for the police precinct that includes the building where he was shot. And Poonam and Greenfield did not object to or otherwise contest those statistics.

The Court found that the volume of those crimes, all of which involved an assault component like the Kellman incident, raised a question of fact as to whether Poonam and Greenfield should have foreseen the type of incident involved in this case issue because of the crimes in the area. Poonam and Greenfield had the burden of showing but failed to show that those crimes were unlike the Kellman incident or so far removed geographically that they could not have informed them of the likelihood of similar crime in their building.

Poonam and Greenfield also argued that the intentional and premeditated actions of the assailants broke any causal connection between their duty to provide security and the shooting. However, the actions of third parties would only break the causal connection between Poonam and Kellman’s action and the shooting if the third parties’ actions were not foreseeable. And criminal actions of third parties are foreseeable if there have been sufficiently similar prior criminal acts in the vicinity. Thus, the intention of the assailants, their criminal acts, and their means of entry into the building would be foreseeable if there had been a history of similar crimes at the building or in the surrounding area—as to which there were genuine triable issues of fact.

Poonam and Greenfield’s motion to dismiss Kellman’s complaint was denied.

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