JEAN v. ST PAUL ZION CHURCH (2000)

In an action to recover damages for personal injuries, the defendant St. Paul A.M.E. Zion Church appeals from an order of the Supreme Court, Rockland County (Murphy, J.), dated April 23, 1999, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, without costs or disbursements.

 The plaintiff, a tenant in a house owned by the defendant, was accosted outside her apartment by an unknown assailant who forced her into a storeroom in the building through a broken casement window and assaulted her.   The plaintiff had been assaulted in the same storeroom several months earlier by an assailant who also grabbed her as she was walking past the broken window and pulled her inside.   The defendant was aware of the first assault and that the window was broken.   The Supreme Court denied the defendant's motion for summary judgment, finding that there were triable issues with regard to whether the second attack was reasonably foreseeable and whether the defendant's failure to repair the window was a proximate cause of the plaintiff's injuries.   We affirm.

Given the similarity between the two assaults, there exists a triable issue of fact as to whether the second attack was a foreseeable consequence of the defendant's failure to repair the window after the first attack (see, Jacqueline S. v. City of New York, 81 N.Y.2d 288, 598 N.Y.S.2d 160, 614 N.E.2d 723).

 The defendant also failed to establish as a matter of law that it owed no duty to its tenant regarding an attack which began outside of its building (cf., Waters v. New York City Hous. Auth., 69 N.Y.2d 225, 513 N.Y.S.2d 356, 505 N.E.2d 922).

Accordingly, the defendant's motion was properly denied (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).

MEMORANDUM BY THE COURT.