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Antonio Francisco CABRERA-PEREZ, Plaintiff, v. The PROMESA HOUSING DEVELOPMENT FUND CORPORATION and Acacia Network, Inc., Defendants.
Plaintiff brings this personal injury case against The Promesa Housing Development Fund Corporation and Acacia Network, Inc., (collectively referred to as “Defendants”). Defendants now move for summary judgment pursuant to CPLR 3212, dismissing the plaintiff's complaint against them. Plaintiff opposes the motion and cross-moves for an order granting summary judgment or, in the alternative, for an order of preclusion and for a negative inference charge.
Plaintiff seeks damages for injuries he allegedly sustained as the result of an assault that occurred on May 29, 2016 in an apartment he shared with his niece/roommate, Yudelka Colon, located at 1707 Topping Avenue, Apartment 4D, Bronx, New York. 1707 Topping Avenue is a rental building housing 20-25 apartments. Plaintiff alleges to have been assaulted in the subject apartment as a result of defendants’ negligence in their maintenance and repair of the subject building, specifically, the two broken front doors and a short chain lock on the plaintiff's door as well as a blurry peephole. Plaintiff testified at his deposition that on the aforementioned date at approximately 2:00 p.m., he heard a knock on the his apartment door, he looked through the peephole and saw a female who asked for Ms. Colon by name. When he slightly opened the door, a male assailant who was later viewed in a video standing to the side of the plaintiff's door, with his back to the wall and in such a manner that he could not be seen by the person in the apartment looking through the door's peephole, forcibly pushed the door open and entered the apartment at gunpoint along with the female assailant. Plaintiff testified that the door's chain lock was too short and therefore he could not open the door with the security of the chain lock to prevent unauthorized entry. Plaintiff further testified that if the chain lock worked, he would have opened the door with the chain lock to be able to see and hear better, and to protect himself. Lastly, plaintiff testified that the glass for the peep hole in his apartment was blurry, rendering it difficult for him to see. Because he could not hear well through the door or see well through the blurry peep hole, plaintiff maintains that he cracked open the door in order to see and communicate with the female intruder, which prompted the ensuing struggle and forcible entry. Once inside the apartment, the assailants specifically asked for $5,000 that they said they had sent to Ms. Colon.
Ms. Colon testified at her deposition that she kept large amounts of cash in the apartment, which was money she collected from a “partnership” that she collects to give to people in the partnership. She testified that when she viewed the surveillance footage at the NYPD precinct, she clearly saw the intruders attempting to enter someone else's apartment. She further testified that she did not recognize the attackers and that they could easily have known her name because the mailboxes in the subject building were broken and her mail was routinely opened by others, and her information visible for anyone to see.
Both Ms. Colon and plaintiff testified that although both entrance doors had self-closing, self-locking doors, on the date of the incident, both of the entrance doors were non-functioning in that anyone could just push on the door to swing it open, in violation of Multiple Dwelling Law 50-a (1) and 78. Plaintiff, therefore contends that he is entitled to summary judgment, as neither the chain guard was maintained pursuant to section 78 of the Multiple Dwelling laws, nor were the front entry and vestibule doors maintained in a self-closing, self-locking condition as required by Multiple Dwelling 50-a (1) and the common law.
Plaintiff's expert, Jon Amass opined that if the chain guard was operable, it was of sufficient type and quality to have prevented a forcible entry. Plaintiff's expert further explained that minimal standard security precautions in a building mandates the provision of self-closing, self-locking front entry doors.
Defendants contend that the attack on the plaintiff was not the result of negligence. Instead, they argue it was a targeted assault meant for the tenant of record, the plaintiff's niece, who had left the apartment only fifteen minutes prior to the accident. Defendants argue that the targeting of the plaintiff's niece is evidenced by the fact that the assailants asked for her by name and for a specific amount of money that she had in her apartment. Moreover, they argue that the surveillance video depicts the plaintiff willingly opened the front door to allow the assailants in after observing the female assailant through the peephole. Defendants contend that the fact that the plaintiff was accidentally attacked rather than the intended target does not change the fact that this was a targeted attack for which defendants cannot be liable, even if it is established the assailants entered the building due to broken door locks. Put differently, defendants argue that because the plaintiff's damages were the result of a targeted attack, the defendants cannot be held liable based on the allegation of negligent security and inadequate maintenance of the building.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. Winegrad v. New York University Medical Center, 64 NY2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 (1985). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. The burden on the movant is a heavy one, and the facts must be viewed in the light most favorable to the non-moving party. Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824 .) Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ).
A landowner has a duty to maintain its premises in a reasonably safe condition “in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” (Peralta v Henriquez, 100 NY2d 139, 144 , quoting Basso v Miller, 40 NY2d 233, 241 ). In this regard, a possessor of real property is under a duty to maintain reasonable security measures to protect those lawfully on the premises from reasonably foreseeable criminal acts of third parties (Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 518-519 ). The landowner's duty extends to criminal assaults that are foreseeable (Walfall v Bartinin's Pierre, Inc., 128 AD3d 685 [2d Dept. 2015])
Here, the moving defendants have submitted proof in admissible form to show that the plaintiff's injuries were the result of an intervening, intentional criminal act of armed robbers, one pretending to be a friend or associate of plaintiff's niece, who targeted plaintiff's niece and their home in advance (see Rivera v New York City Hous. Auth., 239 AD2d 114  [no liability when injury due to preconceived criminal conspiracy in which perpetrator targeted plaintiff's stepbrother for murder and gained entry to apartment by means of a ruse]). The intentional criminal act at issue “was an unforeseeable, intervening force which severed the casual nexus between the alleged negligence of defendant and the complained-of-injury” (Harris v New York City Hous. Auth., 211 AD2d 616, 617 ). In this case, the perpetrators of the crime against the plaintiff Were unlawfully on the premises to carry out a preplanned attack that demonstrated their determination to succeed notwithstanding any minimal security precautions placed in their way.
These facts suffice to make a prima facie showing that the plaintiff's niece was targeted well in advance by the assailants, severing any causal connection between his injuries and defendants’ alleged negligence in failing to repair a broken front door lock (see Buckeridge v Broadie, 5 AD3d 298, 300 [1st Dept 2004]).
In opposition, plaintiff fails to establish the existence of material issues of fact which require a trial of this action. Plaintiff contends that the assault occurred as a result of defendants’ negligence in their maintenance and repair of the subject building, arguing that not only did the assailants gain access through the two broken front doors, but also as a result of a defective chain lock on the plaintiff's apartment door as well as a blurry peephole. However, the evidence submitted with defendants’ motion demonstrates that this was a clear, targeted attack intended for plaintiff's niece, the named tenant of the apartment, that the plaintiff willingly opened the door for the armed assailants after they asked for her by name, and that the assailants asked for a specific amount of money which plaintiff's niece testified she kept in the apartment. Plaintiff's response that a functioning front door lock would have deterred the assailants is most unlikely (Cerda v 2962 Decatur Ave. Owners Corp., 306 AD2d 169, 169 [1st Dept 2003]). Based on these facts, and contrary to plaintiff's contentions, this court does not concur that the attack on him would not have happened but for the blurry peephole, broken chain guard and door locks.
Therefore, even if the defendants had notice of an allegedly defective broken door or lock, or allegedly violated the Administrative Code or Multiple Dwelling Law, they are still not liable since the clear targeted attack was an “unforeseeable superseding intervening cause which would negate the effect of such notice” (see Estate of Murphy v New York City Hous. Auth., 193 AD3d 503 [1st Dept 2021]).
Accordingly, it is hereby
ORDERED that the motion of defendants pursuant to CPLR 3212 for an order granting summary judgment dismissing all claims against it is granted, and it is further
ORDERED that the plaintiff's cross-motion is denied in its entirety.
This is the Decision and Order of the Court.
Adrian Armstrong, J.
Response sent, thank you
Docket No: 28384/2016E
Decided: February 28, 2022
Court: Supreme Court, Bronx County, New York.
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