| Neil v New York City Hous. Auth. |
| 2008 NY Slip Op 01724 [48 AD3d 767] |
| February 26, 2008 |
| Appellate Division, Second Department |
| Devon Neil, Respondent, v New York City HousingAuthority, Appellant, et al., Defendant. |
—[*1] Mark J. Rayo, P.C., Brooklyn, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant New York City HousingAuthority appeals from so much of an order of the Supreme Court, Kings County (Battaglia, J.),dated April 4, 2007, as denied that branch of its motion which was for summary judgmentdismissing the plaintiff's cause of action asserting a violation of Real Property Law § 231(2) insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff was assaulted on premises owned and operated by the defendant New York CityHousing Authority (hereinafter the defendant) by an assailant alleged to be a tenant at thosepremises. The assault followed a prior incident in which the plaintiff was punched and thewindow of the apartment where he was living with his mother was shattered, after he complainedabout the assailant's engagement in certain activities in the hallway of the building, allegedlyinvolving illegal drugs. The plaintiff commenced this action to recover damages for personalinjuries he sustained as a result of the assault. The Supreme Court, inter alia, denied thedefendant's motion for summary judgment dismissing the cause of action asserting a violation ofReal Property Law § 231 (2) insofar against it. We affirm.[*2]
Pursuant to Real Property Law § 231 (2), "[t]heowner of real property, knowingly leasing or giving possession of the same to be used oroccupied, wholly or partly, for any unlawful trade, manufacture or business, or knowinglypermitting the same to be so used, is liable severally, and also jointly with one or more of thetenants or occupants thereof, for any damage resulting from such unlawful use, occupancy, trade,manufacture or business." In order to establish a violation thereunder, the plaintiff must "showthat the defendant was given notice of repeated criminal activity on the premises such that therisk of injury was likely [and] that a causal relationship existed between the complained ofactivities and plaintiff's injuries" (Maria S. v Willow Enters., 234 AD2d 177, 178-179[1996] [citation omitted]; see Alonso v Branchinelli, 277 AD2d 408, 409 [2000]).
The defendant failed to establish, as a matter of law, that it lacked notice of repeated criminalactivity occurring on the premises (see Luisa R. v City of New York, 253 AD2d 196, 200[1999]; Beatty v National Assn. for Advancement of Colored People, 194 AD2d 361,362-363 [1993]). In support of its motion, the defendant submitted the deposition testimony of ahousing assistant who asserted, inter alia, that he had received several prior complaints regardingdrug activity in the building. The housing assistant's testimony was corroborated by thedeposition testimony of the plaintiff and his mother who asserted, among other things, that theyhad seen individuals selling and using drugs in the hallway outside the mother's apartment. Themother also testified at her deposition that she made several oral complaints to the defendantregarding this drug activity and submitted documentary evidence of a written complaint she madeto the defendant, which included a copy of a police report.
The defendant also failed to establish, as a matter of law, that the drug activity was unrelatedto the plaintiff's injuries (cf. Muniz v Flohern, Inc., 77 NY2d 869 [1991]). There is norequirement that the prior criminal activity be of the same type as that to which the plaintiff wassubjected in order to establish foreseeability of the plaintiff's injury, but the court must consider"the location, nature and extent of those previous criminal activities and their similarity,proximity or other relationship to the crime in question" (Jacqueline S. v City of New York,81 NY2d 288, 295 [1993]; see Venetal v City of New York, 21 AD3d 1087, 1089[2005]; Novikova v Greenbriar Owners Corp., 258 AD2d 149, 153 [1999]). Here, theplaintiff and his mother were previously threatened by the assailant after they complained to thedefendant and the police about the assailant's activities on the premises. The plaintiff allegedlywas assaulted by the assailant on his return to the building. The defendant was unable toestablish, prima facie, that the assault was unrelated to those prior complaints or that the assaultwas not foreseeable based upon the prior occurrences (see Venetal v City of New York,21 AD3d 1087, 1089 [2005]; Luisa R. v City of New York, 253 AD2d at 200;Beatty v National Assn. for Advancement of Colored People, 194 AD2d at 362-363), andwe thus need not consider the sufficiency of the papers submitted by the plaintiff in opposition.
The defendant's remaining contentions are without merit. Skelos, J.P., Fisher, Dillon andMcCarthy, JJ., concur. [See 15 Misc 3d 1115(A), 2007 NY Slip Op 50698(U).]