| Udoh v Inwood Gardens, Inc. |
| 2010 NY Slip Op 01537 [70 AD3d 563] |
| February 23, 2010 |
| Appellate Division, First Department |
| Charles Udoh, Appellant, v Inwood Gardens, Inc., et al.,Respondents. |
—[*1] Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains (Adam J. Detsky ofcounsel), for respondents.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered September19, 2008, which, to the extent appealed from, granted defendants' motion for summary judgmentdismissing the complaint, unanimously reversed, on the law, with costs, and the complaintreinstated.
Plaintiff is one of the tenant shareholders of an apartment on the top floor of theMitchell-Lama cooperative owned by defendant Inwood Gardens, Inc. and managed bydefendant Metro Management Development, Inc. In 2000, plaintiff lived in the apartment withtwo of his sisters and a coworker. However, at that time he was the only person with a key to theapartment. The apartment had a terrace, accessible by a door in the living room. When plaintiffmoved into the apartment in 1995, he had complained to defendants that the terrace door wasdefective insofar as it allowed water to seep into the apartment. Over the next five years, heasked defendants to repair the door numerous times.
On January 7, 2000, a Friday, defendants finally sent a contractor to plaintiff's apartment toreplace the terrace door. However, the replacement door was the wrong size and did not fit theframe. No proper replacement door could be obtained for several days and the contractor coveredthe opening to the terrace by placing a plastic sheet over it. Because of the cold weather outside,a representative of defendant Metro, who was present while the contractor worked, advisedplaintiff that he should vacate the apartment until the contractor replaced the door. Plaintiffaccepted this advice and found shelter elsewhere.
On January 10, 2000, plaintiff returned to the apartment. As he stepped off the elevator, henoticed that the front door to the apartment, which he had locked when he left the previousFriday, was ajar. When he entered the apartment, he found that it was in a state of disarray. Uponfurther investigation, he discovered that the apartment had been ransacked and that many of hispossessions had been stolen. Plaintiff commenced this action to recover the value of the pilferedgoods. He maintains that defendants' failure to adequately secure the opening from the terraceinto the apartment permitted a burglar to gain access to the apartment.
Defendants moved for summary judgment. They argued that plaintiff could not establish thatthey were, or should have been, aware of a likelihood that his apartment would be [*2]burglarized. Further, they contended that plaintiff would not beable to prove at trial that the intruders entered the apartment through the terrace. This was basedon plaintiff's testimony at his deposition that he was not certain how the intruders entered thebuilding or the apartment, and that he did not know how somebody could have gained access tothe terrace in the first place. As an alternative to summary judgment, defendants sought dismissalof the complaint based on plaintiff's alleged failure to respond to discovery demands, or an orderof preclusion.
In opposition, plaintiff contended that defendants had failed to provide him with many of thedocuments he had demanded from them in discovery. In support of his position that security atthe building was generally poor, he submitted memoranda to shareholders alerting them tovarious thefts and muggings in the building, as well as board meeting minutes memorializingdiscussion of safety issues. However, these documents postdated the incident at issue by severalyears.
Supreme Court granted the motion and dismissed the complaint. It held: "[T]here is noevidence that criminal activity was foreseeable, that defendants failed to provide adequatebuilding security, that the burglar was an intruder, or that the burglar entered through the terracedoor. Even assuming that the burglar entered through the terrace door, which admittedly wasnegligently maintained, plaintiff would still have to prove that it is more likely than not that anintruder committed the robbery, which he is unable to do." The court denied the preclusionmotion as moot.
We reverse. On a motion for summary judgment, all of the evidence must be viewed in thelight most favorable to the party opposing the motion, and all reasonable inferences must beresolved in that party's favor (see Boydv Rome Realty Leasing Ltd. Partnership, 21 AD3d 920, 921 [2005]). When there is anydoubt as to the existence of triable issues, summary judgment should not be granted (seeDawson v Alarcon, 154 AD2d 320 [1989]). Here, plaintiff testified that only he had the keyto the front door of the apartment, and that he locked the door the last time he left the apartmentbefore returning to find it ransacked. The lock to the front door was not broken when hereturned, indicating that no one forced their way into the apartment through that door. It wouldbe logical for a trier of fact to conclude, therefore, that whoever entered plaintiff's apartmentcame in through the terrace, and left through the front door.
Defendants argue that, even if the intruder entered through the terrace, summary judgment isstill appropriate because plaintiff cannot establish that the person who entered the apartment wasunlawfully in the building, as opposed to being another tenant or someone allowed into thebuilding by a tenant. They further contend that, even if the person who entered the apartmentwas an unlawful intruder, plaintiff possesses no evidence that it was foreseeable to defendantsthat the building was not secure and that they should have taken measures to better ensureresidents' safety.
Defendants' position lacks merit. The record does not allow for the conclusion that theperson who entered plaintiff's apartment did so lawfully. That is because plaintiff testified thatno one who lived in the apartment was there between the time that he left the apartment theFriday before the intrusion and the time that he discovered the crime. Moreover, whether theintruder was lawfully in the building is irrelevant. Plaintiff's allegation is that, under thecircumstances, defendants' duty to take minimal security precautions against reasonablyforeseeable criminal acts by third parties (see James v Jamie Towers Hous. Co., 99NY2d 639, 641 [2003]) extended to his apartment. This is based on the fact that defendants'affirmative acts [*3]compromised not the security of the building,but of the apartment itself. Indeed, because they created the condition which allegedly permittedintruders to enter the apartment via the terrace, defendants' argument that plaintiff has notestablished that an intrusion by a third party was foreseeable must be rejected. Accordingly, anissue of fact exists as to whether defendants may be held liable for plaintiff's loss. In any event,defendants created the condition, the unsecured terrace entrance, which under any circumstanceswould allow any malefactor to enter the apartment. Concur—Mazzarelli, J.P., Catterson,Moskowitz and Manzanet-Daniels, JJ.