Iannelli v. Powers

Decision Date10 February 1986
Citation114 A.D.2d 157,498 N.Y.S.2d 377
PartiesCandida H. IANNELLI, etc., Respondent-Appellant, v. Bertram A. POWERS, etc., et al., Appellants-Respondents, et al., Defendants.
CourtNew York Supreme Court — Appellate Division

Page 377

498 N.Y.S.2d 377
114 A.D.2d 157
Candida H. IANNELLI, etc., Respondent-Appellant,
v.
Bertram A. POWERS, etc., et al., Appellants-Respondents, et
al., Defendants.
Supreme Court, Appellate Division,
Second Department.
Feb. 10, 1986.

Page 378

Newman & Schlau, P.C., New York City (Philip Schlau and Abraham S. Altheim, of counsel), for appellants-respondents Powers and New York Typographical Union # 6.

Bower & Gardner, New York City (Jesse J. Graham II, Laurie A. Kamaiko and Howard R. Cohen, of counsel), for appellant-respondent Graphic Arts Federal Credit Union.

Nathan Cyperstein, New York City (Steve S. Efron, of counsel), for appellants-respondents Lawrence S. Levine, Leonard Frankel and Albert M. Levine.

William J. Stutman, New York City, for respondent-appellant.

Before MANGANO, J.P., and THOMPSON, BRACKEN and BROWN, JJ.

BRACKEN, Justice.

On these appeals, we are called upon to determine whether a jury verdict, finding the owners of a commercial office building, and a tenant and subtenant therein, liable for the on-premises shooting death of the plaintiff's decedent at the hands of third persons, is, as a matter of law, supported by sufficient evidence. We hold that the trial evidence does not support the imposition of liability upon these defendants and, therefore, we reverse the judgment appealed from and dismiss the action.

The premises located at 817 Broadway in Manhattan is a commercial office building owned by the defendants Lawrence S. Levine, Leonard Frankel and Albert M. Levine, doing business as Industrial Building Co. (owners). The entire seventh and eighth floors of the building were leased to the defendant New York Typographical Union # 6 (union). The defendant union sublet a portion of the seventh floor to the defendant Graphic Arts Federal Credit Union (credit union), a federally chartered savings and loan cooperative for members of the union.

The doors to 817 Broadway were unlocked only during the hours that the building remained open to the public, i.e., Monday through Friday between 7:30 or 8:00 A.M. and 6:00 P.M. Customarily, the building superintendent would unlock the front doors at about 7:30 A.M., and he would remain in the building lobby until relieved by an attendant at 11:00 A.M. While in the lobby, the superintendent would answer inquiries and direct visitors to the elevators, but he was never instructed to screen those people entering the building.

Page 379

Notwithstanding the limited hours during which the building was open to the public, tenants requiring access at other hours were routinely provided with keys by the owners. In fact, the union's lease expressly provided for access to the building and its passenger elevators "24 hours a day, 7 days a week". The owners had supplied a key to the building to Bertram A. Powers, the president of the defendant union, and he had thereafter caused copies of that key to be made and distributed to other union personnel.

Philip Isenberg was the treasurer of the defendant credit union. On March 17, 1976, Isenberg entered the building at about 7:00 A.M. Although the building was still locked at that hour, he had been given a key, with which he gained entrance. Arriving at the seventh floor, Isenberg unlocked and entered the union offices, for which he had also been given a key. Pursuant to an agreement with a security service, the credit union offices could not be entered before 7:30 A.M. Thus, Isenberg remained in the union offices. He immediately deactivated the union office alarm and entered a code advising the security service of an authorized entry.

At approximately 7:15 A.M., two men connected with the union entered the office, followed by several armed men wearing stocking masks. The masked men forced Isenberg to open the credit union office and the safe within that office. Isenberg was then handcuffed and directed to lie on the floor. He heard the robbers leave, and, shortly thereafter, he heard a single gunshot. Minutes later, a guard from the security service arrived in an apparent response to the alarm triggered by the premature opening of the credit union safe.

The plaintiff's decedent, Victor Iannelli, was found in the public lobby on the seventh floor, at the door of the elevator, with a bullet wound to the head. The decedent, an unemployed printer and union member, had been en route to the union offices for his required weekly "shape-up". Tragically, he apparently encountered the robbers as they were fleeing from the credit...

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