LESTER v. (and a third-party action).

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

Ramona LESTER, Appellant, v. NEW YORK CITY HOUSING AUTHORITY, Respondent, (and a third-party action).

Decided: March 18, 2002

GABRIEL M. KRAUSMAN, J.P., LEO F. McGINITY, THOMAS A. ADAMS and STEPHEN G. CRANE, JJ. Sullivan Papain Block McGrath & Cannavo, P.C., New York, N.Y. (Stephen C. Glasser and Stewart G. Milch of counsel), for appellant. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Richard E. Lerner and Brett Leitner of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Weiss, J.), dated December 20, 2000, which granted the defendant's motion for summary judgment dismissing the complaint, and (2) a judgment of the same court, entered April 20, 2001, which dismissed the complaint.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that the respondent is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a][1] ).

At about 5:00 A.M. on January 12, 1996, the plaintiff allegedly was assaulted by Keith Edwards in the lobby of her apartment building, which was in a housing development owned by the defendant New York City Housing Authority (hereinafter the NYCHA).   The plaintiff commenced this action against the NYCHA, alleging that Edwards, who was not a tenant of the building or the development, gained entry because of an inoperative front entrance door lock.   The Supreme Court granted the NYCHA's motion for summary judgment dismissing the complaint.   We affirm.

 Landlords have a common-law duty to take minimal precautions to protect tenants from the reasonably foreseeable criminal conduct of third parties (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).   The NYCHA made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence demonstrating that the front entrance door was self-locking, and that the lock was operative the day before the assault (see, Tarter v. Schildkraut, 151 A.D.2d 414, 415, 542 N.Y.S.2d 626;  Anzalone v. Pan-Am Equities, 271 A.D.2d 307, 308-309, 706 N.Y.S.2d 409).   In opposition, the plaintiff failed to demonstrate that the lock was inoperative at the time of the assault (see, Pitchon v. City of New York, 243 A.D.2d 548, 664 N.Y.S.2d 559;  Eleby v. New York City Hous. Auth., 223 A.D.2d 665, 637 N.Y.S.2d 219).   Furthermore, the plaintiff failed to demonstrate how Edwards gained entry (see, Gleaton v. New York City Hous. Auth., 221 A.D.2d 504, 633 N.Y.S.2d 399), or that he was not another tenant's invitee or otherwise permitted to be in the building (see, Cobb v. New York City Hous. Auth., 251 A.D.2d 362, 363, 673 N.Y.S.2d 744;  Woodley v. New York City Hous. Auth., 245 A.D.2d 502, 503, 666 N.Y.S.2d 485).   Therefore, the plaintiff has not raised a triable issue of fact as to whether the NYCHA failed to provide minimal security measures or whether any breach of its duty to do so was the proximate cause of her injuries (see, Pitchon v. City of New York, supra).

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