| Alrobaia v Park Lane Mosholu Corp. |
| 2010 NY Slip Op 04628 [74 AD3d 403] |
| June 1, 2010 |
| Appellate Division, First Department |
| Satia Alrobaia, an Infant, by Her Mother and Natural Guardian,Anita Severs, et al., Appellants, v Park Lane Mosholu Corp. et al.,Respondents. |
—[*1]
Order, Supreme Court, Bronx County (Cynthia S. Kern, J.), entered August 19, 2009, which,in an action for personal injuries sustained in a crime allegedly caused by inadequate buildingsecurity, granted defendants' motion for summary judgment dismissing the complaint,unanimously reversed, on the law, without costs, the motion denied, and the complaintreinstated.
The motion court found that defendants were entitled to summary judgment because, as theinfant plaintiff testified, the doors to the building were propped open when she arrived at thebuilding. The court concluded that since plaintiffs could not produce any evidence as to when thedoors had been propped open, or when the assailant entered the building, it was just as likely thatthe assailant entered the building through the open doors as it was that he gained entrancebecause the locks were broken, and, thus, plaintiffs could not establish a causal connectionbetween the broken locks and the attack. The argument on which the court relied, however, wasraised for the first time in defendants' reply papers, and should not have been considered by thecourt in formulating its decision (seeSerradilla v Lords Corp., 50 AD3d 345, 346 [2008]).
Thus, summary judgment was improperly granted. Concur—Gonzalez, P.J., Saxe,Nardelli, McGuire and Moskowitz, JJ.