The following papers numbered 1 to 3 read on this motion:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1

Opposing Affidavits (Affirmations)2

Reply Affidavits (Affirmations)3

Affidavit (Affirmation)

Other Papers

Upon the foregoing papers, defendant 398 Crescent Street Property, Inc., (398 Crescent) moves for an order pursuant to CPLR 3211 dismissing the complaint.

The motion is granted and the complaint is dismissed as against 398 Crescent.

In the complaint, plaintiff alleges that Richard Acosta, a Queens resident, was dragged or lured into defendant 398 Crescent's building, located at 398 Crescent Street, Brooklyn, New York, and robbed and killed by defendant Carlos Melendez-Sanchez. Plaintiff further [*2]alleges that 398 Crescent's building was a public nuisance in that it had been abandoned, and was not locked or secured, and that if the building had been properly sealed, Melendez-Sanchez, who did not have permission to enter the building, would not have been able to break into the building and murder Richard Acosta.

Turning first to 398 Crescent's assertion that the complaint fails to state a cause of action, a motion to dismiss on that ground made pursuant to CPLR 3211(a)(7) may be made at any time (Chuqui v Church of St. Margaret Mary, 39 AD3d 397 [2007]; Schel v Roth, 242 AD2d 697, 697-698 [1997]; CPLR 3211[e]). In deciding a motion under CPLR 3211(a)(7), the pleading is to be afforded a liberal construction (CPLR 3026), and the court should accept as true the facts alleged in the complaint, accord plaintiff the benefit of every possible inference, and only determine whether the facts, as alleged, fit within any cognizable legal theory (see Hurrell-Harring v State of New York, 15 NY3d 8, 20 [2010]; Leon v Martinez, 84 NY2d 83, 87-88 [1995] ).

Under this standard, plaintiff has failed to state a cause of action in light of the Court of Appeals decision in Waters v New York City Hous. Auth. (69 NY2d 225 [1987]). In Waters, the plaintiff was grabbed by a man who had a knife and who directed her to walk with him to a building, which was owned by the defendant and which was unlocked, where he proceeded to sodomize her (id. at 227). In opposition to defendant's summary judgment motion in Waters, the plaintiff had submitted evidence that the defendant owners had failed to maintain the locks on the building for at least two years, that the tenants had made complaints about this condition, and that there had been at least five criminal incidents involving outsiders (id.). Despite this evidence of negligent security, the Court of Appeals found that a building owner's duty of care is limited to the building's tenants and others who might reasonably be expected to be on the premises and held that, in order to place a controllable limit on liability, the owner's duty of care did not extend to a plaintiff who has no connection to the building, and who has been dragged into the building by a third-party actor over whom the owner has no control (id. at 228-230). The Appellate Division has adhered to the holding of Waters in subsequent decisions addressing similar factual situations (see Matter of Brown v New York City Hous. Auth., 39 AD3d 744, 745 [2007]; Hernandez v Hagans, 21 AD3d 335, 336 [2005]; Graham v New York City Hous. Auth., 225 AD2d 520 [1994]; Audrey B. v New York City Hous. Auth., 202 AD2d 532, 533 [1994], lv denied 84 NY2d 801 [1994]).

In evaluating plaintiff's complaint in light of the holding in Waters and its progeny, there are no factual distinctions that would warrant finding that 398 Crescent owed Richard Acosta a duty of care. Plaintiff's labeling the property a public nuisance does not alter the duty 398 Crescent owed Richard Acosta. In this regard, whatever theory underlies a nuisance claim, recovery for a nuisance, whether public or private, generally requires a showing that defendant's use of the land caused the injury (see Bly v Edison Elect. Illuminating Co., 172 [*3]NY 1, 9 [1902]; see also 532 Madison Gourmet Foods, Inc., v Finlandia Center, Inc., 96 NY2d 280, 292-294 [2001]). As an extension of this general principle, the Appellate Division has held that no recovery may be had for nuisance where the injury is caused by subsequent intervening criminal conduct by a third-party (see People v Sturm, Ruger & Co., 309 AD2d 91, 96-103 [2003], lv denied 100 NY2d 514 [2003]). In addition, none of the evidentiary material submitted by plaintiff has any bearing on the duty owed by 398 Crescent, and it thus fails to show that she has a cause of action (cf. Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). Finally, assuming, arguendo, that outstanding discovery could be a grounds for denying a motion to dismiss (cf. CPLR 3212[f]), such discovery does not constitute a grounds for denying the motion here since plaintiff has failed to articulate how such additional discovery would have any bearing on the duty 398 Crescent owed to Richard Acosta (see Woodard v Thomas, 77 AD3d 738 [2010]). Having found that plaintiff has failed to state a cause of action, the court declines to address 398 Crescent's additional grounds for dismissal of the complaint.

This constitutes the decision and order of the court.

E N T E R,

___________________

Robert J. Miller

J. S. C.

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