| Ishmail v ATM Three, LLC |
| 2010 NY Slip Op 07511 [77 AD3d 790] |
| October 19, 2010 |
| Appellate Division, Second Department |
| Imtiaz A. Ishmail et al., Respondents, v ATM Three, LLC,Appellants, et al., Defendants. |
—[*1] Parker Waichman Alonso LLP (Arnold E. DiJoseph, P.C., New York, N.Y.), for respondentsImtiaz A. Ishmail, Bibi N. Mohammed, Basmattie Mangroo, and Holika Mangroo.
In an action to recover damages for wrongful death and personal injuries, etc., the defendantsATM Three, LLC, and Arthur T. Mott Real Estate, LLC, appeal from an order of the SupremeCourt, Nassau County (Martin, J.), dated August 6, 2009, which denied their motion forsummary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is reversed, on the law, with costs, and the appellants' motion forsummary judgment dismissing the complaint insofar as asserted against them is granted.
The defendant ATM Three, LLC (hereinafter ATM), owns an apartment building at 45Broadway in Freeport, which was constructed in 1962. The defendant Arthur Mott Real Estate,LLC (hereinafter AMRE), maintained the premises. Apartment 1Z of the building was occupiedby Totaram Mangroo, the building's superintendent. He lived there with his two sisters, theplaintiffs Holika Mangroo and Salima Ishmail, his brother-in-law, the plaintiff Imtiaz A. Ishmail,Salima's and Imtiaz's children, Afzal, Asif, and Afsaana, and his mother, the plaintiff BasmattieMangroo. Holika Mangroo began dating the defendant Balgram Singh in 2000. They wereengaged to be married, but Holika broke off the engagement, and Singh thereafter began stalkingher. He harassed her at work and at home, threatened her with a gun, and set Salima's car on fire.In the early morning hours of July 5, 2004, Singh ignited an accelerant at the front door of thesubject apartment, a crime for which he is now imprisoned. The occupants of the apartmentcould not escape through the front door until the fire department arrived, and could not escapethrough the bedroom windows, which were guarded by security bars. All of the residents sufferedat least minor injuries as a result of the fire. Salima Ishmail died of smoke inhalation.
The plaintiffs commenced this action, alleging that ATM and AMRE (hereinafter togetherthe appellants) were negligent in providing security at the apartment building, and that they werenegligent in allowing the security bars to exist on the bedroom windows. The appellants [*2]moved for summary judgment dismissing the complaint insofar asasserted against them, submitting in support of their motion, among other things, the affidavit ofthe building inspector who had inspected the subject building at least 10 times, and the affidavitof a former firefighter who had performed more than 2,500 building inspections. Both stated thatthe security bars on the windows were compliant with all relevant building codes. In the orderappealed from, the Supreme Court denied the appellants' motion for summary judgment. Wereverse.
The Supreme Court erred in denying that branch of the appellants' motion which was forsummary judgment dismissing the cause of action alleging negligent security insofar as assertedagainst them. A landowner and its managing agent have a duty to take minimal precautions toprotect their tenants from foreseeable harm, including the harm caused by a third party'sforeseeable criminal conduct on the premises (see Mason v U.E.S.S. Leasing Corp., 96NY2d 875, 878 [2001]; Burgos v Aqueduct Realty Corp., 92 NY2d 544, 548 [1998];Nallan v Helmsley-Spear, Inc., 50 NY2d 507 [1980]; see also Johnson v City of New York, 7 AD3d 577 [2004]). Inorder to establish foreseeability, plaintiffs are required to present proof that the criminal conductat issue was "reasonably predictable based on the prior occurrence of the same or similar criminalactivity at a location sufficiently proximate to the subject location" (Novikova v GreenbriarOwners Corp., 258 AD2d 149, 153 [1999]). " 'Without evidentiary proof of notice of priorcriminal activity, the owner's duty reasonably to protect those using the premises from suchactivity never arises' " (Beato vCosmopolitan Assoc., LLC, 69 AD3d 774, 776 [2010], quoting Williams vCitibank, 247 AD2d 49, 51 [1998]).
The appellants established their prima facie entitlement to judgment as a matter of law, andthe plaintiffs failed to raise a triable issue of fact. There was no evidence to establish that theappellants had notice of Singh's prior criminal activity. A determination that the appellants hadnotice of Singh's prior criminal activity would be based solely on speculation and would becontrary to evidence in the record establishing that they had no such notice (see Cynthia B. v 3156 Hull Ave. Equities,Inc., 38 AD3d 360 [2007]; Harris v New York City Hous. Auth., 211 AD2d616, 616-617 [1995]; Tarter v Schildkraut, 151 AD2d 414, 414-415 [1989]).
The Supreme Court also erred in denying that branch of the motion which was for summaryjudgment dismissing the cause of action alleging that the presence of the security bars on thewindows constituted a defect in the apartment. A landowner must act reasonably in maintainingits property in a reasonably safe condition in view of all the circumstances, including thelikelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk(see Basso v Miller, 40 NY2d 233, 241 [1976]; Peralta v Henriquez, 100 NY2d139, 144 [2003]). The scope of the duty varies with the foreseeability of the potential harm(see Tagle v Jakob, 97 NY2d 165, 168 [2001]). The appellants demonstrated, primafacie, that, under the facts of this case, they had no duty to remove the window guards to allow asecondary method of egress (see Khan vBangla Motor & Body Shop, Inc., 27 AD3d 526, 527-528 [2006]; White v Jeffco W.Props., 304 AD2d 824, 824-825 [2003]; Thompson v New York City Hous. Auth.,212 AD2d 775, 776 [1995]). In opposition, the plaintiffs failed to raise a triable issue of fact(see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
In view of the foregoing, we do not address the parties' remaining contentions. Mastro, J.P.,Dickerson, Eng and Lott, JJ., concur.