DeLEON v. GLOVEBOX REALTY CORP

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

Albania DeLEON, Plaintiff-Respondent, v. GLOVEBOX REALTY CORP., Defendant-Appellant.

Decided: February 18, 1999

TOM, J.P., MAZZARELLI, ANDRIAS and SAXE, JJ. Ira H. Goldfarb, for plaintiff-respondent. Howard R. Cohen, for defendant-appellant.

Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered July 15, 1998, which, in an action by plaintiff tenant against defendant building owner for personal injuries sustained as a result of inadequate building security, denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Plaintiff's submission of an affidavit from an individual stating that he and the perpetrator entered the building through the front door, which had a broken lock, that they then went to the roof where the perpetrator picked up the heavy, flat stone that had been propping open the roof door and threw it over the roof to the ground below, and that they ran away when they realized the stone had hit someone, was sufficient to raise a triable issue of fact as to whether the perpetrator gained access to the building and its roof as a result of inadequate security (cf., Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 551-552, 684 N.Y.S.2d 139, 706 N.E.2d 1163).   Defendant's contention that the perpetrator could have gained access to the roof from adjoining rooftops regardless of any security measures defendant employed, viewed against plaintiff's evidence that the building superintendent was aware of a history of criminal activity on the roof, including the throwing of garbage and glass bottles to the ground below, serves only to raise issues of fact going both to proximate cause (see, id., at 549-551, 684 N.Y.S.2d 139, 706 N.E.2d 1163) and the extent of defendant's duty to provide reasonable security (see, Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 520, n. 8, 429 N.Y.S.2d 606, 407 N.E.2d 451).

MEMORANDUM DECISION.