BELLO v. Khan Management, Inc., et al., Defendants.

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Lucinda BELLO, et al., Plaintiffs–Appellants, v. CAMPUS REALTY LLC, et al., Defendants–Respondents, Khan Management, Inc., et al., Defendants.

Decided: October 25, 2012

MAZZARELLI, J.P., SWEENY, RENWICK, RICHTER, ROMÁN, JJ. The Taub Law Firm P.C., New York (Matthew A. Taub of counsel), for appellants. Molod Spitz & De Santis, New York (Marcy Sonneborn of counsel), for respondents.

Order, Supreme Court, New York County (Louis B. York, J.), entered July 18, 2011, which, in this premises security action, granted the motion of defendants Campus Realty LLC and Hamid Khan for summary judgment dismissing the complaint as against them, unanimously modified, on the law, to deny the motion insofar as it sought dismissal of the complaint as against Campus Realty, and otherwise affirmed, without costs.

Campus Realty, as the owner of the subject building, owed the plaintiff residents a duty to take minimal security precautions to protect them from foreseeable criminal acts (see Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 551 [1998]; Wayburn v. Madison Land Ltd. Partnership, 282 A.D.2d 301, 303, 724 N.Y.S.2d 34 [1st Dept 2001] ). Questions of fact exist as to whether Campus Realty breached that duty by failing to remedy the allegedly broken lock on the building's front door entrance, despite notice of the dangerous condition (see Carmen P. v. PS & S Realty Corp., 259 A.D.2d 386, 388, 687 N.Y.S.2d 96 [1st Dept 1999] ). Plaintiffs testified that the front door lock was broken, that the condition existed for at least two weeks before they were allegedly robbed by intruders, and that they told the superintendent and the property manager's secretary about the broken lock shortly before the robbery (see id.). Issues of fact also exist as to whether the robbery of plaintiffs was foreseeable, given the evidence of prior crimes, including robberies, in and around the building (see Jacqueline S. v. City of New York, 81 N.Y.2d 288, 294–295 [1993] ).

As to proximate cause, an issue of fact exists as to whether the assailants were intruders who entered the building through the allegedly defective front door. Plaintiff Bello testified that she had been residing in the building since 1997, that she was familiar with the tenants, and that the intruders, who were impersonating police officers, were not residents (see Burgos, 92 N.Y.2d at 551–552, 684 N.Y.S.2d 139, 706 N.E.2d 1163; Esteves v. City of New York, 44 A.D.3d 538, 539, 844 N.Y.S.2d 33 [1st Dept 2007] ). Further, an issue of fact exists as to whether plaintiff Garcia's act of opening the front door of plaintiffs' apartment constituted an intervening event that severed the causal chain (see Madera v. New York City Hous. Auth., 264 A.D.2d 579, 579–580, 694 N.Y.S.2d 391 [1st Dept 1999] ). Indeed, plaintiffs testified that Garcia opened the door to take out the trash and go to the gym, and that the intruders pushed him into the apartment, forced him down to the floor, and handcuffed him (see id. at 580, 694 N.Y.S.2d 391). With respect to damages, the evidence defendants submitted was insufficient to make a prima facie showing that plaintiffs did not suffer psychological injuries as a result of the incident.

Supreme Court properly dismissed the complaint as against defendant Khan, Campus Realty's managing member and property manager, since there is no allegation or indication in the record that Khan intentionally perpetrated a wrong or injustice (see East Hampton Union Free School Dist. v. Sandpebble Bldrs., Inc., 16 N.Y.3d 775, 776 [2011] ).