| Muong v 550 Ocean Ave., LLC |
| 2010 NY Slip Op 08078 [78 AD3d 797] |
| November 9, 2010 |
| Appellate Division, Second Department |
| Kunthea Muong, Appellants, v 550 Ocean Avenue, LLC, etal., Respondents. |
—[*1]
In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal from anorder of the Supreme Court, Kings County (Vaughan, J.), dated July 7, 2009, which granted thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
On May 30, 2004, the plaintiffs' decedent, Gene Hop, allegedly was attacked and robbed inan outdoor passageway on the premises of 550 Ocean Avenue, the apartment building in whichhe lived. Hop lost consciousness during the attack and, when he was revived, he had no memoryof the incident. He died of his injuries four days later. The plaintiffs, who are the administratorsof his estate, commenced this action against the owners and managers of the building, allegingthat Hop had been attacked just inside the gate to the passageway and that the lock to that gatewas frequently broken. The plaintiffs further alleged that the defendants had notice of thiscondition, including its most recent recurrence shortly before the attack. After discovery wascompleted, the defendants moved for summary judgment dismissing the complaint, arguing, interalia, that the plaintiffs did not know how or where the attack occurred and, therefore, could notestablish that any negligence on the part of the defendants was a proximate cause of Hop'sinjuries. The Supreme Court granted the motion. We reverse.
"Landlords have a 'common-law duty to take minimal precautions to protect tenants fromforeseeable harm,' including a third party's foreseeable criminal conduct" (Burgos v AqueductRealty Corp., 92 NY2d 544, 548 [1998], quoting Jacqueline S. v City of New York,81 NY2d 288, 293-294 [1993]; see Rios v Jackson Assoc., 259 AD2d 608, 609 [1999])."A tenant may recover damages, however, only on a showing that the landlord's negligentconduct was a proximate cause of the injury" (Burgos v Aqueduct Realty Corp., 92 NY2dat 548; see Alvarez v Masaryk Towers Corp., [*2]15AD3d 428, 428-429 [2005]). "A plaintiff is not required to exclude every other possible cause,but need only offer evidence from which proximate cause may be reasonably inferred. Plaintiff'sburden of proof on this issue is satisfied if the possibility of another explanation for the event issufficiently remote or technical to enable the jury to reach its verdict based not upon speculation,but upon the logical inferences to be drawn from the evidence" (Burgos v Aqueduct RealtyCorp., 92 NY2d at 550 [internal quotation marks and citations omitted]; see Schneider vKings Hwy. Hosp. Ctr., 67 NY2d 743, 744-745 [1986]). Moreover, in order to withstand amotion for summary judgment, the plaintiff need not prove proximate cause by a preponderanceof the evidence but, assuming that the defendant has met its prima facie burden, need only raise atriable issue of fact as to proximate cause (see Burgos v Aqueduct Realty Corp., 92NY2d at 550; Venetal v City of NewYork, 21 AD3d 1087, 1090 [2005]).
Here, the defendants failed to meet their burden, inter alia, of establishing, prima facie, thatHop's injuries were not proximately caused by their negligence. The evidence submitted by thedefendants themselves indicated that Hop was found several feet inside the gate with grocerybags around him, that only Hop, his family, and the building's superintendent had keys to thepassageway, and that Hop had previously been robbed in the passageway. This evidence failed tonegate a reasonable inference that the attack occurred inside the passageway and that Hop'sattacker had been able to gain access to it because of the allegedly negligently maintained lock ofwhich the defendants had notice, rather than by alternative means not attributable to thedefendants' alleged negligence (see Burgos v Aqueduct Realty Corp., 92 NY2d at 550;Bennett v Twin Parks Northeast Houses, 93 NY2d 860, 861 [1999]; Venetal v City ofNew York, 21 AD3d at 1090). Inasmuch as the defendants failed to demonstrate their primafacie entitlement to judgment as a matter of law, their motion should have been denied withoutregard to the sufficiency of the plaintiffs' papers in opposition (see Smalls v AJI Indus., Inc., 10 NY3d733, 735 [2008]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Fisher, J.P.,Santucci, Eng and Sgroi, JJ., concur.