New York's Cooperative and Condominium Community
Victor M. Metsch in Legal/Financial on November 29, 2018
It was a grim and bloody night at the Sea Cliff Towers co-op on Staten Island. The New York Times carried this terse account:
“A fight between two friends who were dating the same woman ended in the death of one of them, the police said yesterday. On Wednesday night, Michael Cafferata, 33, was visiting Michael Kett, 41, in Fort Wadsworth. The two argued, and Mr. Kett stabbed Mr. Cafferata with a steak knife, the police said. Mr. Kett fled, but was later arrested and charged with second-degree murder.”
Years after that night of horror, Cafferata’s estate sued the Sea Cliff Towers co-op board and the estate of Michael Kett’s late mother, Barbara, who was the owner of apartment 3P when the murder occurred there. The lawsuit claimed that the building had a defective entry system and that the co-op board had failed to protect Cafferata from a crime that was “foreseeable,” based on Michael Kett’s prior criminal activities.
The co-op made a motion to dismiss the complaint, acknowledging that while Michael Kett was a heavy user and dealer of crack cocaine, he was well acquainted with Cafferata and their mutual female friend, Debra Elia, who were invited guests in the apartment on the fateful night. The co-op board argued that it had no obligation to protect a guest who had been invited into an apartment.
The case turned on the definition of what constitutes a “foreseeable” act. In her ruling, Civil Court judge Joy F. Campanelli noted that a co-op board has “a common-law duty to take minimal precautions to protect tenants from foreseeable harm from a criminal attack from third parties.” An act is deemed foreseeable, the judge continued, if it was “reasonably predictable based on a prior occurrence of the same or similar criminal activity...occurring in the same building.”
In opposition to the motion to dismiss the case, Cafferata’s estate argued that a question of fact existed as to whether the co-op board provided necessary protection to Cafferata. The claim was based on the premise that the board had a duty to protect him because it was aware of Michael Kett's prior criminal activities and conduct and nevertheless failed to evict him or take other appropriate action.
The Kett estate pointed out that Cafferata and Michael Kett were friends. Each was aware of the other's history, and at times they participated in "bad acts" together. The estate also argued that the co-op board’s awareness of bad acts did not make the stabbing attack foreseeable. And finally, it argued that Cafferata’s history and voluntary association with Michael Kett established an “assumption of risk on his part."
The court ruled that the stabbing arose from a purely personal dispute between Cafferata and Kett and was not foreseeable. At best, the Cafferata estate established that the co-op board had knowledge of Michael Kett's criminal activities, including loitering, drug use, and possible drug sales. But since the Cafferata estate failed to address the fact that Cafferata and Michael Kett were friends who regularly interacted with each other inside and outside the apartment, the court granted the co-op board’s motion for summary judgment and dismissed the complaint.
This tragic story contains a kernel of good news for co-op and condo boards: they are not automatically liable when bad things happen to bad people on the co-op’s or condominium’s premises.
Victor M. Metsch is of counsel at the law firm of Smith, Gambrell & Russell.
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