Motion-Secondary: Mushtaq Grant v. 1137 E. 223rd Corp. D/B/A Faith Christian Academy, Envision Design & Construction Llc And, Robert L. Knight

On June 29, 2018 a Motion-Secondary was filed involving a dispute between Mushtaq Grant, and 1137 E. 223Rd Corp. D B A Faith Christian Academy, Envision Design & Construction Llc And, Robert L. Knight, for Torts - Other (Assault) in the District Court of Bronx County.

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FILED: BRONX COUNTY CLERK 01/26/2023 02:50 PM INDEX NO. 27619/2018E
NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 01/26/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
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MUSHTAQ GRANT, Index No: 27619/2018E

Plaintiff,
AFFIRMATION IN
-against- OPPOSITION TO
DEFENDANT’S MOTION
1137 E. 223RD CORP d/b/a FAITH CHRISTIAN ACADEMY, FOR LEAVE TO REARGUE
ENVISION DESIGN & CONSTRUCTION LLC and
ROBERT L. KNIGHT, Assigned to:
Hon. Andrew J. Cohen
Defendants.
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DAVID P. LESCH, an attorney duly admitted to practice law before the Courts of

New York State, affirms the truth of the following statements under penalties of perjury:

1. I am a member of the law firm of Lesch & Lesch, P.C., attorneys for

plaintiff Mushtaq Grant in the above-captioned action. I am fully familiar with the facts and

circumstances of this action from my review of the file maintained by my office in connection

with this case.

2. I submit this affirmation in opposition to the motion of defendant 1137 E.

223rd Corp d/b/a Faith Christian Academy (hereinafter “the Academy” or “defendant”) for leave

to reargue the motion practice that resulted in this Court’s Decision and Order, dated October 26,

2022, which denied defendant’s motion for summary judgment.

A. Preliminary Statement

3. As shown herein, in denying the Academy’s motion for summary

judgment, this Court correctly concluded that defendant failed to eliminate all material issues of

fact bearing on its liability for the violent assault perpetrated against plaintiff Mushtaq Grant

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when he was on defendant’s premises. The Academy has shown no reason for this Court to

revisit and reconsider that decision.

4. Based on the proof and arguments presented by the Academy, this Court

correctly concluded that defendant failed to satisfy its prima facie burden as movant “due to the

lack of sufficient evidence” (see, Exhibit 1 to Defendant’s Motion to Reargue, NYSCEF Doc.

No. 96, Decision and Order, dated October 26, 2022, p. 2). Although the Academy claimed that

it could not be held responsible for the actions of the assailant, defendant Robert Knight, because

he was purportedly not employed by the Academy, the Court determined that defendant failed to

eliminate all material questions of fact on that issue (Id.).

5. Not only has the Academy failed to show error in the Court’s rationale, as

stated in its Decision and Order, but the defendant is silent as to its failure to provide adequate

security at its premises, which, as shown in plaintiff’s prior opposition, would have also served

as appropriate grounds for the denial of defendant’s motion. As was the case on the Academy’s

summary judgment motion, the Academy again does not refute that it can be held liable for

failing to protect the safety of Mr. Grant, who was lawfully on Academy grounds when he was

assaulted. Indeed, defendant does not address any of the case law cited in plaintiff’s opposition

to summary judgment which shows that the Academy may be held liable for failing to provide

adequate security at its premises (see, Exhibit 3 to Defendant’s Motion to Reargue, NYSCEF

Doc. No. 104, Affirmation in Opposition to Defendant’s Motion for Summary Judgment, paras.

26, 28).

6. As it did when unsuccessfully moving for summary judgment, defendant

again adopts an unjustifiably limited view of the evidence, merely focusing on what Academy

owner Rose Donna Taylor claims to have seen or known about Mr. Knight before he perpetrated

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his second assault of Mr. Grant on Academy grounds. Defendant again ignores the proof

showing that Academy employee Norman Davis recommended Mr. Knight to work at the

premises and he oversaw the work performed by Mr. Knight. The Academy similarly overlooks

that Mr. Davis had verbal altercations with Mr. Knight before the assault at issue. What is more,

Academy employee Norman Davis witnessed Mr. Knight’s violent actions toward Mr. Grant

prior to the assault at issue. Defendant has again overlooked the proof regarding Mr. Davis’s

knowledge of Mr. Knight’s prior acts of hostility and violence. That evidence raises factual

questions as to the foreseeability of the assault perpetrated against Mr. Grant on Academy

grounds and also as to the inadequacy of defendant’s security measures.

7. Given Mr. Davis’s indisputable awareness of Mr. Knight’s prior act of

violence, defendant again fails to justify summary judgment by merely claiming that Academy

Director, Rose Taylor, had not previously observed violent behavior by Mr. Knight. Given that

Mr. Davis had witnessed Mr. Knight strike Mr. Grant prior to the assault at issue, defendant does

not show that reargument is warranted and does not show grounds for dismissal of the complaint

by focusing on only Ms. Taylor’s claim that she was not aware of the prior incident when Mr.

Knight struck Mr. Grant in the face (Affirmation in Support of Motion to Reargue, paras. 10, 23;

Memorandum of Law in Support of Defendant’s Motion to Reargue, pp. 2, 5). Defendant’s

claim that “The Academy did not have knowledge of any violent propensities on the part of

Robert L. Knight and did not have any reason to know of the same” ignores that Academy

employee Mr. Davis knew of Mr. Knight’s prior act of violence against Mr. Grant on Academy

premises.

8. As the evidence shows, although Academy employee Norman Davis was

aware of Mr. Knight’s prior incident of violence, the Academy did nothing to protect Mr. Grant

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from further violence at the Academy premises. The Academy did not fire Mr. Knight, nor was

he escorted off the premises. The Academy did not even call the police to prevent additional acts

of violence. The Academy’s motion for summary judgment did not account for those facts and

circumstances. Indeed, defendant’s motion did not refute that Mr. Davis’s awareness that Mr.

Knight previously struck Mr. Grant raises issues of fact as to the foreseeability of the assault at

issue, the inadequacy of the security measures on Academy premises and whether the

Academy’s failure to provide sufficient security was a proximate cause of the assault at issue on

Mr. Grant.

9. What is more, as this Court correctly recognized, factual issues underlying

the Academy’s duty of care toward Mr. Grant preclude summary judgment for the defendant

(Decision and Order, dated October 26, 2022, p. 2). Conflicting deposition testimony from Mr.

Grant and Ms. Taylor as to the location of the assault at issue undermines defendant’s claim that

it did not owe a duty of care to Mr. Grant. As the record supports a conclusion that the assault at

issue occurred on the Academy’s premises, defendant is again wrong in asserting that it did not

owe a duty to Mr. Grant as a matter of law.

B. The Assault on Plaintiff at Defendant’s School

10. On September 8, 2017, plaintiff Mushtaq Grant was working for Envision

Design as a carpenter on a renovation project at the Faith Christian Academy in Bronx County

(Exhibit E to Defendant’s Motion for Summary Judgment, NYSCEF Doc. No. 76, Plaintiff’s

Deposition, pp. 17-18, 23, 25, 27, 53, 54). Defendant Robert Knight is the owner of Envision

Design (Id., p. 23). Mr. Grant had previously worked for Mr. Knight years earlier (Id., p. 36).

The project at the Academy involved knocking out walls, putting in new bathrooms, installing

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new classroom floors and plumbing repair (Id., p. 54). As many as six tradesmen were involved

in the renovation work depending on the day (Id., p. 53).

11. While working on the renovation project, Mr. Grant interacted with

Academy employee Norman Davis (Id., p. 58). Mr. Grant also interacted with the Academy

Director Rose Taylor (Id., pp. 58-59, 60). Mr. Grant identified Mr. Davis as the husband of the

Academy’s director (Id., p. 58).1 Mr. Grant testified that Mr. Davis and Ms. Taylor oversaw the

renovation project and they would ask him directly to do certain tasks before others (Plaintiff’s

Deposition, p. 62). In describing one of these instances, Mr. Grant testified: “Norman came to

me and he said to me he would like me to get that door in for the kitchen because school is going

to be open Monday and they’re going to need the kitchen, so he would like me to put in the

door” (Id., p. 61).

12. Additional testimony from Mr. Grant established Mr. Davis’s significant

role in supervising the renovation project on behalf of the Academy. Mr. Grant testified that

prior to the assault at issue, while he was working on the third floor of the school, Mr. Davis

approached him and brought Mr. Grant downstairs to the kitchen (Id., p. 66). The kitchen

renovations had not been completed and Mr. Davis requested that Mr. Grant “make it happen”

before the school re-opened (Id., pp. 66-67).

13. On September 8, 2017, Mr. Grant arrived for work at the Academy at

approximately 9:00 a.m. (Id., pp. 63-64). He was upset that Mr. Knight had not paid him for

work previously performed (Id., p. 64). Mr. Grant put his tool belt on and he noticed that Mr.

Knight was standing right in front of him. Mr. Grant asked for the long screws which he had

1
Ms. Taylor testified that Mr. Davis is her fiancé (Exhibit D to Defendant’s Motion for Summary
Judgment, NYSCEF Doc. No. 75, Taylor Deposition, p. 29).

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requested the day before and Mr. Knight began to shout at him, “What the F are you asking me

for screws” (Id., pp. 64-65). At that moment, Mr. Davis entered the area and reassured Mr.

Grant that he could speak to him (Mr. Davis) if he hadn’t been getting paid. Mr. Davis told Mr.

Grant, “I need you here” (Id., p. 65).

14. Mr. Knight started cursing at Mr. Grant when he saw Mr. Davis talking to

him (Id.). Mr. Grant was prepared to leave the worksite, but Mr. Davis again said to him, “I

need you here…I’ll pay you” and Mr. Grant chose to stay at the Academy to continue the work

(Id.).

15. Shortly after Mr. Grant arrived at the school that day, he saw Mr. Davis

and Mr. Knight have a “big argument” (Id., pp. 76, 80). Mr. Davis and Mr. Knight were “loud”

and Mr. Knight was yelling and cursing (Id., pp. 80, 81). After the ten minute argument Mr.

Knight “bolted out of the building and left” (Id., pp. 76, 81).

16. Later that day, Mr. Knight questioned Mr. Grant why he was installing a

door and Mr. Grant explained that Norman Davis had asked him to install the door (Id., p. 86).

After Mr. Knight left the area, Mr. Davis asked Mr. Grant what he and Mr. Knight were talking

about. When Mr. Grant responded, Mr. Davis told Mr. Grant to “just do what you’re doing” (Id.,

p. 86). Mr. Davis then confronted Mr. Knight about problems with his performance at the

jobsite, including his non-payment of the workers (Id., p. 87).

17. After Mr. Davis confronted Mr. Knight, Mr. Knight went over to Mr.

Grant and punched him in the face (Id., p. 88). Mr. Knight struck Mr. Grant in the forehead “for

no reason” (Id.). Norman Davis was present when Mr. Knight struck Mr. Grant in the forehead

(Id., p. 92). Mr. Knight left the area after he hit Mr. Grant in the face (Id., pp. 92-93).

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18. Mr. Knight then came back inside and told Mr. Grant to leave the jobsite

(Id., p. 89). Mr. Grant insisted that he be paid for the work he had performed (Id.). At that time,

Academy Director, Ms. Taylor, came to the area and told Mr. Knight: “I’m not giving you

another dime until the work is completed, and so far I’ve given you over 100,000” (Id., p. 89).

Mr. Knight didn’t say anything, but just left the area (Id., p. 91).

19. A couple of minutes later, when Mr. Grant went outside, he saw Mr.

Knight in the school yard (Id., pp. 90-91). The two began to discuss payment for his work (Id.,

p. 93). Mr. Grant said he wanted to be paid in cash and did not want a check (Id.). Mr. Grant

then got a telephone call and he spoke on the phone briefly (Id.).

20. As soon as Mr. Grant ended his call, he was struck in the right ear “real

hard” by Mr. Knight (Id., p. 94).

21. Mr. Grant testified that Ms. Taylor told him she had witnessed that assault.

Ms. Taylor informed Mr. Grant that she saw Mr. Knight knock him to the ground and begin to

strike him in the face (Id., p. 98). Mr. Grant further testified: “And she said (an) electrician who

ran outside pulled his screwdriver from his waist and got him off of me… And (Mr. Knight)

started running down the block” (Id.).

22. Mr. Grant testified that he recalls that the assault occurred “in the

driveway to the school” (Id., p. 111). He described that the incident occurred in the Academy’s

“yard space” (Id.). Mr. Grant testified that he knows “I was standing right there in the yard” (Id.,

p. 110).

23. Mr. Knight was subsequently apprehended and he pled guilty to

misdemeanor assault (Id., pp. 107, 111).

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24. As a result of the assault at issue, Mr. Grant sustained head trauma, a

broken nose, on-going migraine headaches, and he has undergone eye surgeries (Id., pp. 113-

114).

C. Plaintiff’s Allegations of Negligence Against the Academy

25. This action was commenced on behalf of plaintiff Mushtaq Grant to

recover for the physical injuries he sustained in the assault perpetrated against him while

lawfully on the Academy’s premises to perform construction work (see, Exhibit A to

Defendant’s Motion for Summary Judgment, NYSCEF Doc. No. 72, Summons and Verified

Complaint).

26. Plaintiff’s verified bill of particulars alleges, in part, that the Academy

should be held liable for the assault on Mr. Grant due to its negligence in failing to provide

adequate security for workers within the Academy premises and in failing to take suitable and

proper precautions for the safety of persons within Academy premises (see, Exhibit C to

Defendant’s Motion for Summary Judgment, NYSCEF Doc. No. 74, Plaintiff’s Verified Bill of

Particulars, para. 5).

D. This Court’s Denial of the Academy’s Motion for
Summary Judgment_________________________

27. In its Decision and Order, dated October 26, 2022, this Court denied the

Academy’s motion for summary judgment. In explaining the basis for its determination, the

Court stated that defendant did not meet its prima facie burden of proof “due to the lack of

sufficient evidence” (Exhibit 1 to Defendant’s Motion to Reargue, NYSCEF Doc. No. 102,

Decision and Order, dated October 26, 2022, p. 2).

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28. In denying the Academy’s motion for summary judgment, the Court

further reasoned:

Defendant contends they did not employ Mr. Knight, but rather
they entered into an arms-length contractual relationship with him.
Any contract between the parties regarding the renovations are
significant to determine the relationship, if any, of employer,
employee, contractor and sub-contractor. Here, Defendant failed
to submit such contract to the court and there is conflicting
deposition testimony from Plaintiff and the Academy owner.
Therefore, material issues of fact exist as to whether Defendant
had a duty towards Plaintiff and, alternatively, whether Defendant
breached such a duty (Id.).

E. Defendant Has Not Shown Any Grounds for This
Court to Grant Leave to Reargue to Reconsider its
Prior Determination That Defendant Failed
to Satisfy its Prima Facie Evidentiary Burden With
Respect to its Claim that Assailant Robert Knight Was
Not an Employee of the Academy___________________

29. As the record establishes, and as this Court previously found, when

moving for summary judgment, the Academy failed to satisfy its prima facie burden of proof.

Defendant has not demonstrated any basis for this Court to revisit its prior determination on

reargument. The Academy has fundamentally failed to show any error by this Court in denying

the Academy’s prior motion. See, Matter of Carter v Carter, 81 AD3d 819 (2d Dept 2011);

Matter of Hill v New York City Tr. Auth., 68 AD3d 866 (2d Dept 2009); William P. Pahl Equip.

Corp. v Kassis, 182 AD2d 22 (1st Dept 1992); Foley v Roche, 68 AD2d 558 (1st Dept 1979).

30. In V. Veeraswamy Realty v Yenom Corp., 71 AD3d 874 (2d Dept 2010),

the court made clear: “A motion for leave to reargue ‘shall be based upon matters of fact or law

allegedly overlooked or misapprehended by the court in determining the prior motion, but shall

not include any matters of fact not offered on the prior motion’ (CPLR 2221 [d] [2])… [A]

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motion for leave to reargue ‘is not designed to provide an unsuccessful party with successive

opportunities to reargue issues previously decided’ (citations omitted).” Id.

31. In Matter of Silver v Frieden, 12 Misc3d 1181(A) (Sup Ct, New York

County 2006), the court instructed: “‘A motion for reargument is not just a repetitious

application by a disappointed lawyer, who feels he ought to have as much further reconsideration

as he chooses’… Likewise a motion to reargue is not an opportunity ‘to allow counsel to rehash

questions already decided’ (citations omitted).” Id.

32. In Matter of Hill v New York City Tr. Auth., 68 AD3d 866 (2d Dept

2009), the Appellate Division concluded that the trial court improvidently exercised its discretion

in granting a motion for leave to reargue “since the Supreme Court did not overlook or

misapprehend the facts or law in its initial determination, or mistakenly arrive at its earlier

determination.” Id. at 867. Here, too, the Academy has not demonstrated any grounds for

reargument. Accordingly, it is submitted that this Court should adhere to its denial of

defendant’s motion for summary judgment.

33. Defendant contends that reargument is warranted because the evidence it

submitted in support of its summary judgment motion was sufficient to show that Mr. Knight

was not an Academy employee and that there was a lack of an employment relationship between

Mr. Knight and the Academy. However, defendant neglects to consider that its summary

judgment motion wholly ignored the allegations of negligence stated in plaintiff’s bill of

particulars (see, Exhibit C to Defendant’s Motion for Summary Judgment, NYSCEF Doc. No.,

74, Verified Bill of Particulars, para. 5). Moreover, in offering its narrow ground for

reargument, the Academy conveniently neglects that it did not affirmatively offer any proof to

establish as a matter of law that Mr. Knight and the Academy did not share an

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employee/employer relationship. Defendant is under the erroneous impression that vague

testimony from Ms. Taylor as to the mere existence of a contract with Mr. Knight satisfied the

Academy’s prima facie burden of proof.

34. Contrary to defendant’s mistaken view, Ms. Taylor’s testimony that she

“hired Mr. Knight and signed a contract with him” does not establish as a matter of law that Mr.

Knight was not an employee of the Academy (Taylor Deposition, p. 16). Nor does such

testimony address the duties assumed by the Academy and the scope of Mr. Knight’s

responsibilities when he was hired. The Academy is unable to point to any evidence regarding

the terms of its contract with Mr. Knight. As this Court correctly observed, the Academy’s

failure to submit the written agreement it signed with Mr. Knight leaves unresolved the nature of

the relationship between those parties.

35. Unable to acknowledge the absence of adequate proof in support of its

summary judgment motion, the Academy oddly suggests that it was incumbent upon Mr. Grant

to know and testify about the nature of the relationship between Mr. Knight and the Academy.

In adopting that untenable and irrational argument, the Academy improperly seeks to avoid its

prima facie evidentiary burden as movant. See, CPLR §3212; Alvarez v Prospect Hospital, 68

NY2d 320 (1986).

36. Attempting to mask the insufficiency of its evidentiary showing on its

summary judgment motion, the Academy asserts that “Plaintiff did not testify that Knight was an

employee of the Academy” (Affirmation in Support of Motion to Reargue, para. 41). Given that

the Academy did not submit its written agreement with Mr. Knight and did not establish as a

matter of law that he was not an Academy employee, defendant did not satisfy its prima facie

evidentiary burden by taking issue with what plaintiff knew about the Academy’s relationship

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with Mr. Knight. Defendant’s motion for summary judgment was properly denied due to its

failure to satisfy its initial evidentiary burden regardless of its belief as to the adequacy of

plaintiff’s opposition. See, Alvarez v Prospect Hospital, supra, 68 NY2d 324.

37. It is irrefutable that the Academy’s motion for summary judgment was

unsupported by its written agreement with Mr. Knight. It is likewise indisputable that, as the

Court recognized, “Any contract between the parties regarding the renovations are significant to

determine the relationship, if any, of employer, employee, contractor, and subcontractor”

(Exhibit 1 to Defendant’s Motion to Reargue, NYSCEF Doc. No. 102, Decision and Order, dated

October 26, 2022, p. 2). Consequently, this Court was unquestionably correct in concluding that

the Academy did not satisfy its prima facie burden of proof “due to the lack of sufficient

evidence” (Id.).2

38. Having failed to submit sufficient proof to satisfy its burden of proof on

the limited argument it raised, the Academy attempts to hide its evidentiary deficiency through

citation to irrelevant case law. Contrary to defendant’s erroneous and misleading

characterization, Murphy v ERA United Realty, 251 AD2d 469 (2d Dept 1998), and Sanabria v

Borges, 117 AD3d 1024 (2d Dept 2014), do not stand for the proposition that the absence of a

written contract never matters when considering the existence of an employment relationship

(Memorandum of Law in Support of Defendant’s Motion to Reargue, p. 10). Neither case

2
Ms. Taylor’s deposition testimony showed that she retained Mr. Knight personally, as she stated that
she “hired Mr. Knight and had a contract with him” (Taylor Deposition, p. 16). Her affidavit in support
of defendant’s motion for summary judgment contradicted that testimony. When moving for summary
judgment, Ms. Taylor stated in her affidavit that she “retained the services of Envision Design &
Construction LLC” (NYSCEF Doc. No. 78, Affidavit of Rose Donna Taylor, para. 4). That material
testimonial conflict from defendant’s own witness further negates any claim from the Academy that it
proffered sufficient evidence to satisfy its prima facie burden of proof. Ms. Taylor’s own contradictory
statements highlight why this Court was correct in concluding that defendant’s failure to submit its
written agreement with Mr. Knight compels the denial of defendant’s motion for summary judgment.

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excuses or obviates the Academy’s failure to submit its written agreement with Mr. Knight when

moving for summary judgment.

39. In Murphy, supra, the court concluded, based on the evidence there

presented, that factual questions remained as to whether plaintiff was an employee or

independent contractor, even though she was described as an “independent contractor” in the

written agreement at issue. In Sanabria, supra, the court observed that “While the existence of a

contract designating a person as an independent contractor is not dispositive, it is a factor to be

considered” when determining whether one is an independent contractor or employee. 117

AD3d 1026.

40. The issues and conclusions in Murphy and Sanabria do not demonstrate

any error by the Court here when denying the Academy’s motion for summary judgment. In the

case at bar, the Academy relied on the mere existence of a written agreement with Mr. Knight,

without any showing as to its terms, scope, obligations and requirements. As this Court properly

determined, the contract itself is needed to determine the relationship between the Academy and

Mr. Knight. Having failed to submit the contract, as well as any evidence regarding its salient

language, the Academy did not satisfy its prima facie burden that it cannot be held liable for Mr.

Knight’s misconduct.

41. Not only did the Academy fail to satisfy its prima facie burden with

respect to its claim that Mr. Knight was not an Academy employee, but defendant also did not

establish as a matter of law that Mr. Knight was acting outside the scope of his employment. As

case law holds, “An act is considered to be within the scope of employment if it is performed

while the employee is engaged generally in the business of the employer” (Pinto v Tenenbaum,

105 AD3d 930, 931 [2d Dept 2013], lv denied 25 NY3d 913 [2015]; see also, Fika Midwifery

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PLLC v. Independent Health Assn., Inc., 208 AD3d 1052, 1055 [4th Dept 2022]). “Whether an

employee was acting within the scope of his or her employment is generally a question of fact

for the jury” (Uy v Hussein, 186 AD3d 1567, 1570 [2d Dept 2020]).

42. In the case at bar, the facts show that the assault at issue occurred when

Mr. Knight and Mr. Grant were discussing Mr. Grant’s continued work at the Academy directly

after Mr. Davis and Ms. Taylor had each confronted Mr. Knight about problems with his

performance at the jobsite (Id., pp. 86-89, 93). This evidence raises a material issue of fact as to

whether Mr. Knight was engaged generally in his work at and on behalf of the Academy when

the assault at issue occurred.

43. In this regard, defendants are wrong in asserting that “an assault is outside

of the scope of the employment as a matter of law” (Memorandum of Law in Support of

Defendant’s Motion to Reargue, p. 11). Defendant’s citation to cases in which, on the facts there

presented, an assault was held to be outside of the scope of a particular employee’s employment

does not give credence to defendant’s proposed rule of law that an assault may never be found to

be within the scope of an employee’s employment. Cf., Salem v MacDougal Rest. Inc., 148

AD3d 501, 502 (1st Dept 2017) (In action brought by bar patron following assault by defendant’s

employee, affirming denial defendant’s motion for summary judgment because “On this record,

it cannot be concluded, as a matter of law, that the bouncer was acting outside the scope of

his employment at the time of the assault”).

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F. In Moving for Reargument, Defendant Does Not Refute
its Liability for Failing to Provide Adequate Security to
Prevent the Foreseeable Assault of Mr. Grant Which
Occurred on the Premises of the Academy____________

44. In addition to failing to show error in the Court’s stated grounds for the

denial of defendant’s motion for summary judgment, the Academy also does not refute that

denial of its motion would have been warranted for another reason. When claiming an

entitlement to summary judgment, defendant failed to refute as a matter of law that its employee,

Norman Davis, knew of the violent actions of Robert Knight before he again assaulted Mr. Grant

on Academy premises. As plaintiff argued in opposition to summary judgment, the Academy’s

comprehensive failure to demonstrate as a matter of law that it provided adequate security to

prevent a foreseeable act of violence on its premises compelled the denial of defendant’s motion

for summary judgment (see, Affirmation in Opposition to Defendant’s Motion for Summary

Judgment with Exhibits, NYSCEF Doc. Nos. 89, 90).

45. Testimony from Mr. Grant established that prior to the assault at issue,

Academy employee Norman Davis supervised Mr. Knight; Mr. Davis got into a loud and heated

altercation with Mr. Knight, and Mr. Davis witnessed Mr. Knight strike Mr. Grant in the face

(Plaintiff’s Deposition, pp. 61-62, 65-67, 76, 80, 81, 86, 92). Thus, contrary to defendant’s ill-

conceived claim, plaintiff need not have established that the Academy knew of Mr. Knight’s

violent tendencies when it hired him because Mr. Davis, on behalf of the Academy,

unquestionably knew that Mr. Knight had already assaulted Mr. Grant on Academy premises

prior to the assault at issue, which also occurred on Academy premises (Memorandum of Law in

Support of Defendant’s Motion to Reargue, p. 14).

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46. It is for this reason that defendant’s reliance on Johnson v Cummings, 205

AD3d 614 (1st Dept 2022), is misplaced. There, unlike the case at bar, there was no evidence

showing that the assailant had previously assaulted the plaintiff in front of an employee of the

defendant. In Johnson, unlike the case at bar, there was no proof to raise an issue of fact as to the

adequacy of defendant’s security in light of its knowledge that the assailant had previously struck

the plaintiff on its premises.

47. The unrefuted evidence at bar establishing that Academy employee

Norman Davis was aware that Mr. Knight violently struck Mr. Grant prior to the assault at issue

raises factual issues as to defendant’s liability for the violent conduct which caused Mr. Grant’s

injuries. That is so regardless of defendant’s assertion that Mr. Knight was not an Academy

employee. See, D’Amico v Christie, 71 NY2d 76, 85 (1987) (“Landowners in general have a

duty to act in a reasonable manner to prevent harm to those on their property… In particular,

they have a duty to control the conduct of third persons on their premises when they have the

opportunity to control such persons and are reasonably aware of the need for such control

[citations omitted]”); Vetrone v Ha Di Corp., 22 AD3d 835, 839 (2d Dept 2005) (“[I]ntervening

criminal acts may still give rise to liability under ordinary principles of negligence where there is

a sufficient underlying legal relationship between the parties…and where the acts are ‘a

reasonably foreseeable consequence of circumstances created by the defendant’ [citations

omitted]”); Watson v Adirondack Trailways, 45 AD2d 504 (3rd Dept 1974) (Affirming judgment

after trial for plaintiff who was assaulted at a bus terminal by a passenger who had been

swinging his arms in a violent manner and had not been permitted to board a bus).

48. What is more, defendant again neglects to properly account for the fact

that Mr. Davis recommended Mr. Knight for the construction and renovation project at issue

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FILED: BRONX COUNTY CLERK 01/26/2023 02:50 PM INDEX NO. 27619/2018E
NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 01/26/2023

(Exhibit D to Defendant’s Motion for Summary Judgment, NYSCEF Doc. No. 75, Taylor

Deposition, p. 16). Thus, what Mr. Davis knew about Mr. Knight and his past experiences with

him are central to defendant’s claim that the assault on Mr. Grant was not foreseeable. Despite

that, however, defendant has ignored Mr. Davis’s knowledge and awareness of Mr. Knight and

his prior acts of violence – omissions which underscore the inadequacy of defendant’s

evidentiary showing in support of its motion. Despite the considerable proof showing Mr.

Davis’s significant involvement with Mr. Knight and the events leading up to the assault of Mr.

Grant, defendant conveniently chose not to submit any testimony from Norman Davis.

49. Defendant’s motion for summary judgment was silent with respect to Mr.

Davis’s knowledge of the prior violent actions of Robert Knight perpetrated on Academy

grounds. Defendant’s motion did not refute that Mr. Davis’s awareness that Mr. Knight

previously struck Mr. Grant raises issues of fact as to the foreseeability of the assault at issue, the

inadequacy of the security measures on Academy premises and whether the Academy’s failure to

provide sufficient security was a proximate cause of the assault at issue on Mr. Grant.

Defendant’s omissions in this regard provided additional grounds for the denial of its motion for

summary judgment. Rotz v New York, 143 AD2d 301, 304 (1st Dept 1988) (“Issues of

negligence, foreseeability and proximate cause involve the kinds of judgmental variables which

have traditionally, and soundly, been left to the finders of fact to resolve even where the facts are

essentially undisputed”); Kahane v Marriott Hotel Corp., 249 AD2d 164, 165 (1st Dept 1998)

(“Clearly, whether a risk is foreseeable under a specific set of circumstances is generally a

question best left to a trier of fact”).

50. In addition to overlooking the salient proof, when moving for summary

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January 26, 2023

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Motion-Secondary: Mushtaq Grant v. 1137 E. 223rd Corp. D/B/A Faith Christian Academy, Envision Design & Construction Llc And, Robert L. Knight

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