| Davis v Rochdale Vil., Inc. |
| 2011 NY Slip Op 03538 [83 AD3d 991] |
| April 26, 2011 |
| Appellate Division, Second Department |
| Deshon Davis, Appellant, v Rochdale Village, Inc.,Respondent. |
—[*1] Russo, Keane & Toner, LLP, New York, N.Y. (Thomas F. Keane and Marie A. Castronuovoof counsel), for respondent.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Queens County (James J. Golia, J.), dated December 10, 2009,which granted the defendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff commenced this action against the owner of Rochdale Village, an apartmentcomplex in Queens, inter alia, to recover damages for personal injuries which he allegedlysustained on the night of April 11, 2007, when two men wearing ski masks emerged from thestaircase outside his mother's apartment in Rochdale Village and shot him. The plaintiff allegedthat the defendant's negligence in failing to maintain adequate security in the buildings andcommon areas of Rochdale Village was the proximate cause of his injuries, and that thedefendant had actual and constructive notice of the lack of security, based on an alleged historyof violent incidents which occurred on the premises. The Supreme Court granted the defendant'smotion for summary judgment dismissing the complaint. We affirm.
"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]; seeMuong v 550 Ocean Ave., LLC, 78 AD3d 797, 798 [2010]; Ishmail v ATM Three, LLC, 77 AD3d790, 791 [2010]). Here, the defendant satisfied its burden of establishing its prima facieentitlement to judgment as a matter of law through evidence that, inter alia, the three entrances tothe plaintiff's building required entry through a key card system in which only tenants receivedcards, security cameras recorded movement at each of the three entrances, and the main entrancewas equipped with an intercom buzzer system in which residents controlled access to thebuilding. The defendant also established that it employed over 90 security guards who patrolledthe apartment complex, and the intercom and key card system at the plaintiff's building wereworking on the night that the plaintiff allegedly was attacked (see Jackson v Lefferts Hgts. Hous. Dev., Fund Co., Inc., 38 AD3d610, 610-611 [2007]; Alvarez vMasaryk Towers Corp., 15 AD3d 428, 429 [2005]; Lester v New York City Hous.Auth., 292 AD2d 510, 511 [2002]).[*2]
In opposition, the plaintiff failed to raise a triable issue offact as to whether his assailants were intruders who gained access to the building through anentrance which the defendant failed to adequately secure (see Jackson v Lefferts Hgts. Hous.Dev., Fund Co., Inc., 38 AD3d at 611; Alvarez v Masaryk Towers Corp., 15 AD3d at429; Lester v New York City Hous. Auth., 292 AD2d at 511). The plaintiff also failed toraise a triable issue of fact as to whether his attack was foreseeable, as he relied on one allegedincident which occurred in his building approximately two years before he was attacked and wasnot reported to the defendant, another incident in which a Rochdale Village resident deliberatelylured a victim into his building, and a third incident which occurred in the Bronx (see Ishmailv ATM Three, LLC, 77 AD3d at 792; see also Beato v Cosmopolitan Assoc., LLC, 69 AD3d 774 [2010]).
The plaintiff also failed to establish that the defendant's motion for summary judgment waspremature, because he did not demonstrate that additional discovery might lead to relevantevidence, or that facts essential to justify opposition to the motion were exclusively within theknowledge and control of the defendant (see CPLR 3212 [f]; Nash v Baumblit Constr. Corp., 72AD3d 1037, 1040 [2010]; Chin Sue v City of New York, 83 AD3d 643 [2011]).
Accordingly, the Supreme Court properly granted the defendant's motion for summaryjudgment dismissing the complaint. Covello, J.P., Angiolillo, Dickerson and Roman, JJ., concur.