NELSON v. OSBORNE REALTY CORP

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Supreme Court, Appellate Division, First Department, New York.

Calvin NELSON, Plaintiff-Appellant, v. OSBORNE REALTY CORP., et al., Defendants-Respondents.

Decided: May 09, 2002

ANDRIAS, J.P., SAXE, ELLERIN, MARLOW and GONZALEZ, JJ. Frederic Lewis, for Plaintiff-Appellant. Vito DeStefano, for Defendants-Respondents.

Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered on or about March 9, 2001, which, in an action for personal injuries allegedly caused by inadequate building security, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The action was properly dismissed on the ground that no issue of fact was raised as to whether the attack was foreseeable given no evidence of prior criminal activity in or around the vestibule where the attack took place (see, Mason v. U.E.S.S. Leasing Corp., 96 N.Y.2d 875, 878, 730 N.Y.S.2d 770, 756 N.E.2d 58).   No factual issue is raised by the circumstance that the lock on the vestibule's outer door had been removed, allowing access to the vestibule to anyone from the street, where there was a functioning lock on the vestibule's inner door leading into the building (see, Anzalone v. Pan-Am Equities, 271 A.D.2d 307, 309, 706 N.Y.S.2d 409;  Tarter v. Schildkraut, 151 A.D.2d 414, 542 N.Y.S.2d 626, lv. denied 74 N.Y.2d 616, 549 N.Y.S.2d 961, 549 N.E.2d 152).