| Chunn v New York City Hous. Auth. |
| 2011 NY Slip Op 02727 [83 AD3d 416] |
| April 5, 2011 |
| Appellate Division, First Department |
| Christopher Chunn, Respondent, v New York City HousingAuthority, Appellant, et al., Defendant. New York City Housing Authority, Third-PartyPlaintiff-Respondent, v American Security Systems, Inc., Third-Party Defendant-Appellant. (Anda Second Third-Party Action.) |
—[*1] Kral, Clerkin, Redmond, Ryan, Perry & Girvan, LLP, New York (Rhonda D. Thompson ofcounsel), for American Security Systems, Inc., appellant. Finz & Finz, P.C., Mineola (Jay L. Feigenbaum of counsel), for Christopher Chunn,respondent.
Orders, Supreme Court, New York County (Louis B. York, J.), entered September 2, 2009,which, to the extent appealed from as limited by the briefs, denied defendant New York CityHousing Authority's (NYCHA) motion for summary judgment dismissing the complaint asagainst it and denied defendant/third-party defendant American Security Systems, Inc.'s (ASSI)cross motion for summary judgment dismissing the third-party complaint, unanimously modified,on the law, to grant ASSI's motion, and otherwise affirmed, without costs. Appeal from order,same court and Justice, entered April 29, 2010, which granted NYCHA's motion for reargumentand adhered to its original determination, unanimously dismissed, without costs, as academic.The Clerk is directed to enter judgment dismissing the third-party complaint against ASSI.
Plaintiff alleges that he sustained injuries as a result of being attacked in an apartmentbuilding owned and operated by defendant NYCHA. Plaintiff testified that on the evening ofDecember 31, 2005, he went to visit his sister, who resides in apartment 4F of the building. Uponreaching the building, he noticed several people standing around outside. Plaintiff entered [*2]the building through the front entrance without using a key or theintercom, but simply opened the door, which had a broken lock. There was evidence that thefront door lock was continually malfunctioning and that it was inoperable for a week before theassault.
Plaintiff proceeded down the hallway, and as he reached the door to the stairwell, heobserved two men enter the building though the front door. Plaintiff did not see a key in eitherman's hand, nor did he see them use the intercom. As plaintiff walked up the stairs from the firstto the second floor, he observed these same two men enter the stairwell and follow him. Neitherof the men made any effort to conceal his face. As plaintiff continued up the stairs, he noticed thetwo men getting closer. Plaintiff never made it to his sister's fourth-floor apartment; he was foundunconscious on the third-floor hallway, and the evidence suggests that he was struck on the headwith a glass bottle and robbed. As a result of the attack, plaintiff sustained severe head and braininjuries.
In cases alleging negligence based on inadequately secured building entrances, to establishthe element of proximate cause, a plaintiff must demonstrate that his or her assailant was anintruder and not a building resident or guest (see Burgos v Aqueduct Realty Corp., 92NY2d 544, 550-551 [1998]). To defeat a motion for summary judgment, a plaintiff need notconclusively establish that the assailants were intruders, but must raise triable issues of fact as towhether it was more likely than not that the assailants were intruders who gained access to thepremises through the negligently-maintained entrance (see Raghu v 24 Realty Co., 7 AD3d 455, 456 [2004]).
Here, there is a triable issue of fact as to whether the two men who followed plaintiff into thebuilding and up the stairs were intruders (see Reynolds v New York City Hous. Auth.,271 AD2d 280 [2000]; see also Perez v New York City Hous. Auth., 294 AD2d 279[2002]). Plaintiff testified that before entering the front door, he saw several individuals standingaround outside. A jury could reasonably infer that these individuals, upon seeing plaintiff openthe door without using a key or the intercom, took advantage of the faulty security and followedplaintiff inside. Likewise, a jury could conclude that the two men, who made no effort to concealtheir identity, were the same individuals who assaulted plaintiff.
ASSI's motion for summary judgment dismissing the third-party complaint should have beengranted. NYCHA concedes that ASSI's insurance policies name it as an additional insured, sothere is no merit to NYCHA's claim against ASSI for failure to procure insurance. As to itscontribution claim, NYCHA failed to raise an inference that ASSI owed it a duty of reasonablecare independent of its contractual obligations, or that ASSI owed a duty directly to plaintiff, andthat a breach of either duty contributed to plaintiff's injuries (see Kearsey v Vestal Park, LLC, 71 AD3d 1363, 1365 [2010]). Inany event, the motion court found that ASSI owed no duty directly to plaintiff, and NYCHA doesnot challenge this determination. Since NYCHA's liability, if any, will be based on its ownnegligence, it has no claim for common-law indemnification (see Corley v Country Squire Apts., Inc., 32 AD3d 978, 979[2006]). As to NYCHA's claim for contractual indemnification, ASSI established prima facie thatit fulfilled its contractual obligations by performing quarterly maintenance inspections, aboutwhich NYCHA never made any complaint, and made all repairs that NYCHA requested of it in aprofessional, workmanlike [*3]manner. NYCHA, in opposition,failed to raise an issue of fact (see Kearsey, 71 AD3d at 1366).
We have considered NYCHA's remaining contentions and find them unavailing.Concur—Tom, J.P., Sweeny, Freedman, Richter and Abdus-Salaam, JJ. [Prior CaseHistory: 2009 NY Slip Op 31317(U).]