Brathwaite v. New York City Hous. Auth.

• Decision Date: 21 February 2012
• Parties: Michael BRATHWAITE, respondent, v. NEW YORK CITY HOUSING AUTHORITY, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01422
92 A.D.3d 821
938 N.Y.S.2d 636

Michael BRATHWAITE, respondent,
v.
NEW YORK CITY HOUSING AUTHORITY, et al., appellants, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 21, 2012.

[938 N.Y.S.2d 637]

Lester Schwab Katz & Dwyer, New York, N.Y. (Steven B. Prystowsky of counsel), for appellant New York City Housing Authority.

Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, N.Y. (Gerald Benvenuto of counsel), for appellant American Security Systems, Inc.

Manuel Moses, New York, N.Y., for respondent.WILLIAM F. MASTRO, A.P.J., DANIEL D. ANGIOLILLO, RANDALL T. ENG, and JEFFREY A. COHEN, JJ.

[92 A.D.3d 822] In an action to recover damages for personal injuries, the defendant New York City Housing Authority 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 summary judgment dismissing the amended complaint insofar as asserted against it, and the defendant American Security Systems, Inc., separately appeals, as limited by its brief, from so much of the same order as denied that branch of its separate motion which was for summary judgment dismissing 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 the separate motion of the defendant American Security Systems, Inc., which was for summary judgment 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, Patsy Williams, in a complex owned by the defendant New York City Housing

[938 N.Y.S.2d 638]

Authority (hereinafter NYCHA). The assailants were Patsy's adult sons, Glenn and Douglas Williams. Douglas was a registered tenant who lived in the apartment with Patsy. Glenn had resided in the apartment as well until 2003, when NYCHA permanently barred him from entering the NYCHA development because he had shot someone in a neighboring NYCHA building. NYCHA required Patsy to agree that, for as long as she resided in NYCHA housing, she would not let Glenn reside in or visit her apartment. Thereafter, NYCHA special investigators made unannounced visits to Patsy's apartment to enforce the exclusion order. On March 30, 2005, they found Glenn lying in a bed inside the apartment, and Patsy told them that she had let Glenn into the apartment to visit his son, who continued to live there. NYCHA placed Patsy on probationary tenancy for violation of the exclusion agreement.

The plaintiff was present when Glenn was found in the apartment. The plaintiff testified at his deposition that Glenn had been allowed into the apartment on multiple other occasions after Glenn had been excluded. The plaintiff never reported Glenn's presence to NYCHA, although he knew that it was improper.

The plaintiff commenced this action against, among others, NYCHA and the defendant American Security Systems, Inc. (hereinafter American), the company responsible for maintaining[92 A.D.3d 823] the intercom system at the premises, alleging, inter alia, that the building's security was inadequate because the lock and intercom system for the exterior door to the building were broken, thereby allowing Glenn free access to the building. American moved, among other things, for summary judgment dismissing the complaint insofar as asserted against it, and NYCHA separately moved for summary judgment dismissing the complaint insofar as asserted against it. American and NYCHA...