| Brathwaite v New York City Hous. Auth. |
| 2012 NY Slip Op 01422 [92 AD3d 821] |
| February 21, 2012 |
| Appellate Division, Second Department |
| Michael Brathwaite, Respondent, v New York CityHousing Authority et al., Appellants, et al., Defendants. |
—[*1] Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, N.Y. (Gerald Benvenuto ofcounsel), for appellant American Security Systems, Inc. Manuel Moses, New York, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant New York City HousingAuthority appeals, as limited by its brief, from so much of an order of the Supreme Court,Queens County (Weiss, J.), entered February 3, 2011, as denied its motion for summaryjudgment dismissing the amended complaint insofar as asserted against it, and the defendantAmerican Security Systems, Inc., separately appeals, as limited by its brief, from so much of thesame order as denied that branch of its separate motion which was for summary judgmentdismissing the amended complaint insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs,and the motion of the defendant New York City Housing Authority and that branch of theseparate motion of the defendant American Security Systems, Inc., which was for summaryjudgment dismissing the amended complaint insofar as asserted against each of them are granted.
On August 24, 2007, the plaintiff was assaulted inside the apartment of his girlfriend, PatsyWilliams, in a complex owned by the defendant New York City Housing Authority (hereinafterNYCHA). The assailants were Patsy's adult sons, Glenn and Douglas Williams. Douglas was aregistered tenant who lived in the apartment with Patsy. Glenn had resided in the apartment aswell until 2003, when NYCHA permanently barred him from entering the NYCHA developmentbecause he had shot someone in a neighboring NYCHA building. NYCHA required Patsy toagree that, for as long as she resided in NYCHA housing, she would not let Glenn reside in orvisit her apartment. Thereafter, NYCHA special investigators made unannounced visits to Patsy'sapartment to enforce the exclusion order. On March 30, 2005, they found Glenn lying in a bedinside the apartment, and Patsy told them that she had let Glenn into the apartment to visit hisson, who continued to live there. NYCHA placed Patsy on probationary tenancy for violation ofthe exclusion agreement.
The plaintiff was present when Glenn was found in the apartment. The plaintiff testified athis deposition that Glenn had been allowed into the apartment on multiple other occasions afterGlenn had been excluded. The plaintiff never reported Glenn's presence to NYCHA, although heknew that it was improper.[*2]
The plaintiff commenced this action against, amongothers, NYCHA and the defendant American Security Systems, Inc. (hereinafter American), thecompany responsible for maintaining the intercom system at the premises, alleging, inter alia,that the building's security was inadequate because the lock and intercom system for the exteriordoor to the building were broken, thereby allowing Glenn free access to the building. Americanmoved, among other things, for summary judgment dismissing the complaint insofar as assertedagainst it, and NYCHA separately moved for summary judgment dismissing the complaintinsofar as asserted against it. American and NYCHA argued, among other things, that anynegligence on their part did not proximately cause the incident since the assailant was a formertenant and member of the tenants' family who repeatedly had been invited into the apartment byhis family despite NYCHA's exclusion order. The Supreme Court denied NYCHA's motion andthat branch of American's motion which was for summary judgment, concluding that a triableissue of fact existed as to whether Glenn was an intruder who entered the building through anegligently maintained entrance. American appeals, NYCHA separately appeals, and we reversethe order insofar as appealed from.
Landlords have a common-law duty to take minimal precautions to protect tenants from thereasonably foreseeable criminal conduct of third parties (see Mason v U.E.S.S. LeasingCorp., 96 NY2d 875, 878 [2001]; Burgos v Aqueduct Realty Corp., 92 NY2d 544,548 [1998]; Jacqueline S. v City of New York, 81 NY2d 288, 293-294 [1993]). This dutyextends to a guest of a tenant (see Waters v New York City Hous. Auth., 69 NY2d 225,230-231 [1987]). If a tenant or guest is assaulted by an intruder, recovery against the landlordrequires a showing that the landlord's conduct was a proximate cause of the injury (seeBurgos v Aqueduct Realty Corp., 92 NY2d at 548, citing Miller v State of NewYork, 62 NY2d 506, 509 [1984]).
American established its entitlement to judgment as a matter of law by demonstrating that itwas not a landlord and, thus, owed no duty to the plaintiff. American merely had a contract withNYCHA, which was the landlord, to perform certain repairs to the intercom system at the subjectpremises. "Generally, a contractual obligation standing alone will not give rise to tort liability infavor of a third party" (Petry v HudsonVal. Pavement, Inc., 78 AD3d 1145, 1146 [2010]; see Espinal v Melville SnowContrs., 98 NY2d 136, 138 [2002]; Bienaime v Reyer, 41 AD3d 400, 403 [2007]). However, liabilitymay be assigned where a contracting party, in "failing to exercise reasonable care in theperformance of his duties, launche[s] a force or instrument of harm;" where a plaintiff"detrimentally relies on the continued performance of the contracting party's duties;" or where"the contracting party has entirely displaced the other party's duty to maintain the premisessafely" (Espinal v Melville Snow Contrs., 98 NY2d at 140, 141-142; see Stiver v Good & Fair Carting &Moving, Inc., 9 NY3d 253, 257 [2007]). In opposition to American's showing, theplaintiff failed to raise a triable issue of fact as to the applicability of any of the three exceptionsset forth in Espinal (see Foster vHerbert Slepoy Corp., 76 AD3d 210, 214 [2010]; Espinal v Melville SnowContrs., 98 NY2d at 140-142). Where, as here, the plaintiff failed to allege facts in hiscomplaint or in his bill of particulars which would establish the applicability of any of the threeexceptions set forth in Espinal, American, in establishing its prima facie entitlement tojudgment as a matter of law, was "not required to negate the possible applicability of any of[those] exceptions" (Foster v Herbert Slepoy Corp., 76 AD3d at 214; see Espinal vMelville Snow Contrs., 98 NY2d at 140-142).
Moreover, and contrary to the plaintiff's contention, both NYCHA and American establishedtheir prima facie entitlement to judgment as a matter of law by demonstrating that any negligenceon their part was not a proximate cause of the injuries sustained by the plaintiff. The plaintiffclaimed that security was inadequate because NYCHA and American failed to repair a brokenlock on the entrance to the building. However, the plaintiff testified at his deposition that the twolocks on the door to Patsy's apartment were functioning on the day in question. He furthertestified that he did not know how Glenn entered the apartment prior to the assault, that he andPatsy may have left the door unlocked when they entered earlier that day, and that Glenn mayhave had a key in any event. There was no testimony or documentary evidence arising from theinvestigation of the incident which suggested that Glenn had forcibly entered the apartment, orthat he gained access other than through the front door. Thus, even if Glenn entered the buildingof his own accord because of the inoperative lock, he could not have gained access to the interiorof the apartment where the assault occurred unless, as had been done on prior occasions, a familymember let him in, furnished him with a key, or left the door unlocked.
In opposition to the prima facie showing made by NYCHA and American in connection[*3]with the issue of proximate cause, the plaintiff failed to comeforward with any evidence that Glenn was an intruder rather than an invitee in the apartment(see Lester v New York City Hous. Auth., 292 AD2d 510, 511 [2002]; Torres v NewYork City Hous. Auth., 292 AD2d 519 [2002]; Radlin v Brenner, 283 AD2d 948,949 [2001]; Chang Soo Jang v Jackson Condominium, 260 AD2d 420 [1999];S.M.R.K., Inc. v 25 W. 43rd St. Co., 250 AD2d 487 [1998]) and, thus, failed to raise atriable issue of fact as to whether the alleged negligence of NYCHA and American in failing toproperly maintain the front door lock was a proximate cause of his injuries.
Accordingly, the Supreme Court should have awarded NYCHA and American summaryjudgment dismissing the complaint insofar as asserted against each of them.
The parties' remaining contentions either are without merit or need not be considered in viewof the foregoing. Mastro, A.P.J., Angiolillo, Eng and Cohen, JJ., concur. [Prior Case History:2011 NY Slip Op 30187(U).]