| Perez v Real Tuff Piping & Heating, Inc. |
| 2010 NY Slip Op 04160 [73 AD3d 882] |
| May 11, 2010 |
| Appellate Division, Second Department |
| Robert Perez, Appellant, v Real Tuff Piping and Heating,Inc., Respondent, et al., Defendant. |
—[*1] Greenfield & Ruhl, Uniondale, N.Y. (Brian J. Greenfield of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Balter, J.), dated April 22, 2009, which granted the motion ofthe defendant Real Tuff Piping and Heating, Inc., for summary judgment dismissing thecomplaint insofar as asserted against it.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantReal Tuff Piping and Heating, Inc., for summary judgment dismissing the complaint insofar asasserted against it is denied.
On December 18, 2004, the plaintiff, a tenant in an apartment building in Brooklyn, ownedby the defendant Real Tuff Piping and Heating, Inc. (hereinafter Real Tuff), allegedly wasinjured in the course of a gunpoint robbery as he was walking up the stairs from the vestibule ofthe building to the second floor. The perpetrator was the defendant Benjamin Manners. Theplaintiff commenced this action against Real Tuff and Manners to recover damages for hisinjuries. He alleged that Real Tuff breached its duty to him by failing to provide adequatesecurity and that the breach was a proximate cause of his injuries. After discovery wascompleted, Real Tuff moved for summary judgment dismissing the complaint insofar as assertedagainst it. The Supreme Court granted the motion. We reverse.
A landlord is under a duty to take minimal precautions to protect its tenants from foreseeableharm, "including the harm caused by a third party's foreseeable criminal conduct on thepremises" (Johnson v City of NewYork, 7 AD3d 577, 577 [2004]; see Mason v U.E.S.S. Leasing Corp., 96 NY2d875, 878 [2001]). Whether knowledge of criminal activities occurring in a building is sufficientto make injury to a person in the building foreseeable depends upon the location, nature, andextent of those previous criminal activities and their similarity, proximity, or other relationshipto the crime in question (see Jacqueline S. v City of New York, 81 NY2d 288, 295[1993]). Knowledge of ambient neighborhood crime, standing alone, is insufficient to establishforeseeability (see Novikova v Greenbriar Owners Corp., 258 AD2d 149, 153 [1999]).[*2]
Here, on its motion for summary judgment, Real Tuff, ineffect, acknowledged that there was a triable issue of fact regarding whether there were workingdoor locks on the front doors of the building leading to the vestibule. Real Tuff did not disputethat Manners was an intruder who had gained access to the building through the unlocked frontdoors. Nevertheless, Real Tuff argued that, because it had no notice of similar violent crimescommitted in the building, it was not foreseeable that an intruder would commit the violentcrime here in question. In support, Real Tuff submitted evidence establishing that, althoughcomplaints had been made about intruders using drugs and sleeping in the vestibule, and that aburglary had been committed in the building, there had been no reports of crimes involvingactual or threatened violence.
Real Tuff failed to meet its prima facie burden of establishing, as a matter of law, that it wasunforeseeable, in light of the repeated instances of trespassers gaining access to the building'svestibule through doors without working locks to commit crimes therein, that a robbery of aresident on the stairwell leading from the vestibule to the second floor would occur (cf.Jacqueline S. v City of New York, 81 NY2d 288 [1993]). Since Real Tuff failed to meet itsprima facie burden, denial of the motion was required without regard to the sufficiency of thepapers submitted in opposition (seeSegal v St. John's Univ., 69 AD3d 702, 704 [2010]; Kandel v Kurzman, 24 AD3d 613, 614 [2005]). Fisher, J.P.,Dillon, Dickerson and Eng, JJ., concur.