VENETAL v. New York City Housing Authority, respondent.

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

Veraina VENETAL, etc., et al., appellants, v. CITY OF NEW YORK, defendant, New York City Housing Authority, respondent.

Decided: September 26, 2005

ANITA R. FLORIO, J.P., THOMAS A. ADAMS, DANIEL F. LUCIANO, and PETER B. SKELOS, JJ. David L. Taback, P.C., New York, N.Y. (Anne D. Taback of counsel), for appellants. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Cynthia Neugebauer and Mark J. Cipolla of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Jacobson, J.), entered March 4, 2004, as granted the motion of the defendant New York City Housing Authority for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is denied and the complaint is reinstated insofar as asserted against the defendant New York City Housing Authority.

In this negligence action alleging inadequate premises security, the infant plaintiff and her mother seek to recover damages for personal injuries allegedly sustained by the infant plaintiff on August 24, 1994, at approximately 4:00 A.M., as a result of a gunpoint rape by an unidentified assailant on the rooftop of a building located at 5909 Glenwood Road in Brooklyn.   The plaintiff was 15 years old at the time of the incident.   The premises, known as the Glenwood Houses, is owned by the defendant New York City Housing Authority (hereinafter the defendant).

After the completion of discovery, the defendant's motion for summary judgment dismissing the complaint insofar as asserted against it was granted.   This was error.

The court, on a motion for summary judgment, should not determine issues of credibility or the probability of success on the merits, but should only determine whether there is a triable issue of fact (see Greco v. Posillico, 290 A.D.2d 532, 736 N.Y.S.2d 418).   Contrary to the defendant's assertions, the inconsistencies in the plaintiff's deposition testimony do not eliminate the genuine issues of fact raised in opposition to the motion (see Granados v. New York City Hous. Auth., 255 A.D.2d 249, 250, 680 N.Y.S.2d 246;  see also Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).

 A landlord is not the insurer of the safety of its tenants (Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 519, 429 N.Y.S.2d 606, 407 N.E.2d 451).   However, “[l]andlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person” (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;  see Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 548, 684 N.Y.S.2d 139, 706 N.E.2d 1163;  Jacqueline S. v. City of New York, 81 N.Y.2d 288, 293-294, 598 N.Y.S.2d 160, 614 N.E.2d 723;  Nallan v. Helmsley-Spear, Inc., supra at 519, 429 N.Y.S.2d 606, 407 N.E.2d 451).   This duty of care extends to government entities acting in their proprietary capacity as landlords (see Miller v. State of New York, 62 N.Y.2d 506, 511, 478 N.Y.S.2d 829, 467 N.E.2d 493;  Jacqueline S. v. City of New York, supra at 295, 598 N.Y.S.2d 160, 614 N.E.2d 723;  Waters v. New York City Hous. Auth., 69 N.Y.2d 225, 228, 513 N.Y.S.2d 356, 505 N.E.2d 922).   The municipal landlord's duty to provide minimal safety precautions arises when the municipality is on notice that there is a likelihood that the criminal conduct of third persons at the premises may pose a danger to the safety of tenants or others lawfully present (see Miller v. State of New York, supra at 508-509, 478 N.Y.S.2d 829, 467 N.E.2d 493;  Johnson v. New York City Hous. Auth., 114 A.D.2d 438, 494 N.Y.S.2d 353).   Although evidence of prior criminal activity may establish the element of foreseeability (see Jacqueline S. v. City of New York, supra at 294-295, 598 N.Y.S.2d 160, 614 N.E.2d 723;  Kender v. Taj Mahal Hotel, 234 A.D.2d 518, 651 N.Y.S.2d 913), “[t]here is no requirement” that the prior criminal activity be “at the exact location where plaintiff was harmed or that it be of the same type” by which the plaintiff was victimized (Jacqueline S. v. City of New York, supra at 294, 598 N.Y.S.2d 160, 614 N.E.2d 723).   Whether the history of criminal activity occurring within the confines of a unified housing complex provides sufficient experiential evidence to establish that it is reasonably foreseeable that the tenants are at risk of harm depends on a variety of factors, including “the location, nature and extent of those previous criminal activities and their similarity, proximity or other relationship to the crime in question” (see Jacqueline S. v. City of New York, supra at 295, 598 N.Y.S.2d 160, 614 N.E.2d 723;  Mason v. U.E.S.S. Leasing Corp., supra at 878, 730 N.Y.S.2d 770, 756 N.E.2d 58;   Granados v. New York City Hous. Auth., supra at 250, 680 N.Y.S.2d 246).

 The evidence submitted in opposition to the defendant's motion demonstrated the existence of a material issue of fact with respect to the element of foreseeability of harm from the criminal conduct of third persons in the absence of adequate safety measures (see Burgos v. Aqueduct Realty Corp., supra at 551-552, 684 N.Y.S.2d 139, 706 N.E.2d 1163;  Carmen P. v. PS & S Realty Corp., 259 A.D.2d 386, 387, 687 N.Y.S.2d 96;  Rios v. Jackson Assocs., 259 A.D.2d 608, 609-610, 686 N.Y.S.2d 800).   The crime statistics relied on by the plaintiff were produced by the defendant in pre-trial disclosure and were maintained by the Housing Authority Police.   The experiential evidence of more than 70 felonies, including murder, forcible rape, arson, assault, and burglaries with forced entries, committed during the two years prior to the date the plaintiff was raped, demonstrate that the Glenwood Houses suffered from an extensive history of violent criminal activity.   The defendant's notice of this criminal history was established by the building superintendent's testimony that copies of police reports were given to the building manager (id.;   cf. Grignoli v. New York City Hous. Auth., 196 A.D.2d 525, 601 N.Y.S.2d 167).

 A landlord may discharge its duty of care by providing functioning self-locking doors or other security devices at the entranceway to the building (see e.g. Alvarez v. Masaryk Towers Corp., 15 A.D.3d 428, 789 N.Y.S.2d 727;  Lester v. New York City Hous. Auth., 292 A.D.2d 510, 511, 739 N.Y.S.2d 200;  Anzalone v. Pan-Am Equities, 271 A.D.2d 307, 309, 706 N.Y.S.2d 409).   However, if a door lock malfunctions and a tenant is assaulted, the landlord may be found liable for the failure to provide adequate security in response to foreseeable criminal conduct where the element of causation is established by the assailant's status as an intruder (see Burgos v. Aqueduct Realty Corp., supra at 550-551, 684 N.Y.S.2d 139, 706 N.E.2d 1163;  Carmen P. v. PS & S Realty Corp., supra at 387, 687 N.Y.S.2d 96).   Whether the assailant was an intruder is ordinarily a triable issue of fact (see Burgos v. Aqueduct Realty Corp., supra at 551-552, 684 N.Y.S.2d 139, 706 N.E.2d 1163;  Nallan v. Helmsley-Spear, Inc., supra at 519-520, 429 N.Y.S.2d 606, 407 N.E.2d 451).   In order to establish the landlord's liability, the tenant need not conclusively demonstrate that the assailant was an intruder or that the intruder's means of access was through the negligently maintained door (see Bennett v. Twin Parks Northeast Houses, 93 N.Y.2d 860, 861, 688 N.Y.S.2d 94, 710 N.E.2d 659;  Burgos v. Aqueduct Realty Corp., supra at 551-552, 684 N.Y.S.2d 139, 706 N.E.2d 1163).   At trial, the causal link is established where the plaintiff demonstrates by a preponderance of the evidence that it is more likely than not that the intruder gained access through a negligently maintained door (see Burgos v. Aqueduct Realty, supra at 550, 684 N.Y.S.2d 139, 706 N.E.2d 1163).   However, “in order to withstand summary judgment, a plaintiff need only raise a triable issue of fact regarding whether defendant's conduct proximately caused plaintiff's injuries” (id.;   see Carmen P. v. PS & S Realty Corp., supra at 388, 687 N.Y.S.2d 96;  Rios v. Jackson Assocs., supra at 610, 686 N.Y.S.2d 800).

On the night she was raped by a person she did not know, the plaintiff did not have her keys to the exterior door of her building at the Glenwood Houses or to her apartment.   She knocked on the first floor window of her neighbor's apartment in order to gain access to the building.   Her neighbor opened the locked exterior door and allowed the plaintiff to enter.   After the plaintiff gained entrance to her apartment building, she heard the door shut behind her.   At that time, neither her unknown assailant nor anyone else was in the lobby of the building.   She did not see anyone leave the building.   Thereafter, she heard the door slam immediately before her assailant first confronted her inside the building.   The assailant attempted to engage the plaintiff in conversation until she told him that her father was coming to the door.   She heard the assailant leave the building and then return through the front door shortly thereafter.   No one else had entered the building in the interim and thus, there is no evidence to indicate that another person allowed the assailant into the building (see Brewster v. Prince Apts., 264 A.D.2d 611, 614, 695 N.Y.S.2d 315;  Granados v. New York City Hous. Auth., supra at 250, 680 N.Y.S.2d 246;  cf. Rivera v. New York City Hous. Auth., 239 A.D.2d 114, 115, 657 N.Y.S.2d 32).   Upon re-entering the building, the assailant attempted to engage the plaintiff in conversation until two neighbors entered the building.   Although the plaintiff did not cry out for help, she contends that she unsuccessfully attempted to signal the neighbors of her plight.   After the neighbors went up the elevator, the assailant forced the plaintiff to the roof of the building at gunpoint where he raped her.

The plaintiff testified that she personally witnessed keys from one apartment building open the doors to other buildings in the housing complex.   This evidence of a security lapse was corroborated by the superintendent of the housing complex.   He conceded that when the door lock cylinders become worn, keys from one building's door lock can fit the cylinders in another building's door lock.   He also testified that he was aware of tenant complaints that keys from one building opened the doors to other buildings.   The superintendent acknowledged, were that the case, it would be a violation of the defendant's policy, which was to have different key-lock combinations for each building and that keys to exterior doors were restricted to tenants of the particular building (see Brewster v. Prince Apts., supra at 611, 695 N.Y.S.2d 315).

This, of course, supports the inference that the assailant's status was that of an intruder, particularly when viewed in light of the plaintiff's testimony that her unidentified assailant, who told her that he lived in the housing complex and did not attempt to shield his identity, offered to open the locked exterior door for her (see Burgos v. Aqueduct Realty Corp., supra at 551-552, 684 N.Y.S.2d 139, 706 N.E.2d 1163).

The evidence presented raised a question of fact as to whether the plaintiff's assailant was an intruder who gained access to the building because of a defect in the door lock (see Burgos v. Aqueduct Realty Corp., supra at 550-551, 684 N.Y.S.2d 139, 706 N.E.2d 1163;  Hargett v. New York City Hous. Auth. 92 N.Y.2d 975, 683 N.Y.S.2d 754, 706 N.E.2d 742, revg. 244 A.D.2d 459, 664 N.Y.S.2d 348;  Jacqueline S. v. City of New York, supra at 295, 598 N.Y.S.2d 160, 614 N.E.2d 723;  Anokye v. 240 E. 175th St. Hous. Dev. Fund Corp., 16 A.D.3d 287, 792 N.Y.S.2d 417;  Carmen P. v. PS & S Realty Corp., supra at 388, 687 N.Y.S.2d 96;  Rios v. Jackson Assocs., supra at 608, 609-610, 686 N.Y.S.2d 800;  Granados v. New York City Hous. Auth., supra at 250, 680 N.Y.S.2d 246;  see also Chianese v. Meier, 98 N.Y.2d 270, 278, 746 N.Y.S.2d 657, 774 N.E.2d 722;  cf. Lester v. New York City Hous. Auth., supra at 510, 511, 739 N.Y.S.2d 200).

Accordingly, the defendant's motion for summary judgment dismissing the complaint insofar as asserted against it should have been denied and the complaint is reinstated insofar as asserted against the defendant.

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