FKB’s Tracy S. Katz obtains dismissal of claim against a security guard company for alleged injuries sustained by a plaintiff in a fight with a security guard.
The case concerned allegations that the plaintiffs, a brother and sister, were involved in an altercation with a security guard employed by FKB’s client, a security guard company. The plaintiff claimed that the security guard severely injured them by using a boxcutter in an unprovoked attack, resulting in severe facial scarring and emotional distress. FKB moved for summary judgment arguing that the brother’s claim must be dismissed because he voluntarily inserted himself into the fight. Under the case law, one who voluntarily participates in a physical fight cannot recover from a party generally charged with ensuring a safe environment. See Carreras v. Morrisania Towers Housing Co. Ltd Partnership, 107 A.D.3d 618, 968 N.Y.S.2d 66 (1st Dep’t 2013); Williams v. Board of Educ. of City School Dist. of City of Mount Vernon, 277 A.D.2d 373, 717 N.Y.S.2d 190 (2d Dep’t 2000); Borelli v. Board of Education, 156 A.D.2d 903, 550 N.Y.S.2d 120 (3d Dep’t 1989). The Supreme Court, Bronx County initially denied FKB’s motion for summary judgment. FKB served a motion to reargue, arguing that the Supreme Court overlooked the case law and the facts of this case in failing to dismiss the brother’s cause of action. In a rare occurrence, the Supreme Court reversed itself, granting FKB’s motion to reargue and upon re-argument, dismissing the brother’s cause of action.
If you have any questions, please contact Tracy S. Katz.