| Bello v Campus Realty LLC |
| 2012 NY Slip Op 07213 [99 AD3d 638] |
| October 25, 2012 |
| Appellate Division, First Department |
| Lucinda Bello et al., Appellants, v Campus Realty LLC etal., Respondents, et al., Defendants. |
—[*1] Molod Spitz & De Santis, New York (Marcy Sonneborn of counsel), forrespondents.
Order, Supreme Court, New York County (Louis B. York, J.), entered July 18, 2011, which,in this premises security action, granted the motion of defendants Campus Realty LLC andHamid Khan for summary judgment dismissing the complaint as against them, unanimouslymodified, on the law, to deny the motion insofar as it sought dismissal of the complaint asagainst Campus Realty, and otherwise affirmed, without costs.
Campus Realty, as the owner of the subject building, owed the plaintiff residents a duty totake minimal security precautions to protect them from foreseeable criminal acts (see Burgosv Aqueduct Realty Corp., 92 NY2d 544, 551 [1998]; Wayburn v Madison Land Ltd.Partnership, 282 AD2d 301, 303 [1st Dept 2001]). Questions of fact exist as to whetherCampus Realty breached that duty by failing to remedy the allegedly broken lock on thebuilding's front door entrance, despite notice of the dangerous condition (see Carmen P. vPS&S Realty Corp., 259 AD2d 386, 388 [1st Dept 1999]). Plaintiffs testified that the frontdoor lock was broken, that the condition existed for at least two weeks before they were allegedlyrobbed by intruders, and that they told the superintendent and the property manager's secretaryabout the broken lock shortly before the robbery (see id.). Issues of fact also exist as towhether the robbery of plaintiffs was foreseeable, given the evidence of prior crimes, includingrobberies, in and around the building (see Jacqueline S. v City of New York, 81 NY2d288, 294-295 [1993]).
As to proximate cause, an issue of fact exists as to whether the assailants were intruders whoentered the building through the allegedly defective front door. Plaintiff Bello testified that shehad been residing in the building since 1997, that she was familiar with the tenants, and that theintruders, who were impersonating police officers, were not residents (see Burgos, 92NY2d at 551-552; Esteves v City ofNew York, 44 AD3d 538, 539 [1st Dept 2007]). Further, an issue of fact exists as towhether plaintiff Garcia's act of opening the front door of plaintiffs' apartment constituted anintervening event that severed the causal chain (see Madera v New York City Hous.Auth., 264 AD2d 579, 579-580 [1st Dept 1999]). Indeed, plaintiffs testified that Garciaopened the door to take out the trash and go to the gym, and that the intruders pushed him into[*2]the apartment, forced him down to the floor, and handcuffedhim (see id. at 580). With respect to damages, the evidence defendants submitted wasinsufficient to make a prima facie showing that plaintiffs did not suffer psychological injuries asa result of the incident.
Supreme Court properly dismissed the complaint as against defendant Khan, CampusRealty's managing member and property manager, since there is no allegation or indication in therecord that Khan intentionally perpetrated a wrong or injustice (see East Hampton Union Free School Dist.v Sandpebble Bldrs., Inc., 16 NY3d 775, 776 [2011]). Concur—Mazzarelli, J.P.,Sweeny, Renwick, Richter and Román, JJ.