LANIOX v. New York City Housing Authority, Respondent. (2019)

OPINION OF THE COURT

 MEMORANDUM.

The Appellate Division order should be affirmed, with costs.  On this record, the New York City Housing Authority met its initial burden of demonstrating that no material triable issues of fact exist through its showing that plaintiff's assailant was likely not an intruder.  In response, plaintiff failed to adduce any admissible evidence from which a jury could conclude, without engaging in speculation, that her assailant was an intruder and, concomitantly, whether defendant's alleged negligence was a proximate cause of her injuries (see Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 684 N.Y.S.2d 139, 706 N.E.2d 1163 [1998]).

I dissent.  The New York City Housing Authority (N.Y.CHA) failed to tender sufficient evidence demonstrating that the unidentified assailant likely was not an intruder and, thus, did not establish a prima facie showing of entitlement to summary judgment on the issue of proximate cause.  In the absence of a prima facie showing, the burden never shifted to plaintiff to establish triable issues of fact (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]).  The Appellate Division therefore erred by granting NYCHA's motion.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, in a memorandum.