Iannelli v. Powers

• Decision Date: 10 February 1986
• Citation: 114 A.D.2d 157,498 N.Y.S.2d 377
• Parties: Candida H. IANNELLI, etc., Respondent-Appellant, v. Bertram A. POWERS, etc., et al., Appellants-Respondents, et al., Defendants.
• Court: New 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.

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.

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 union, and he was shot just as he disembarked from the elevator. The decedent lapsed into a coma and died four days later.

The robbers had apparently gained access to the building at about 7:00 A.M., when the doors were still locked. An employee of a tenant on the twelfth floor of the building arrived at that hour, and used her key to open the front door. As she entered, a man approached her and asked to be admitted, claiming that he worked on the fourteenth floor. This man had appeared at about the same time on the previous day and had asked to be allowed in at that time as well. On both occasions, the employee acceded to his requests.

In this action to recover damages for the decedent's conscious pain and suffering and wrongful death, the plaintiff alleged that the proximate cause of the injuries was the negligence of the defendant owners, union and credit union. In particular, the plaintiff alleged that the building was located in a high crime area, and that "loiterers, malingerers and other undesirable characters" had frequented the building. This, coupled with the fact that the credit union was a banking institution and an obvious target for theft and robbery, made it reasonably foreseeable that such crimes would be committed. The plaintiff claimed, therefore, that the appellants-respondents breached a duty to provide greater security in and about their building and respective offices, including, inter alia, competent guards to monitor the entrances to the building and the common areas and individual offices within, and to prevent unauthorized access thereto, and alarms and other electronic equipment for surveillance and to alert the police and others that a crime was being or had been committed. The plaintiff also claimed that there had been a negligent failure to limit and control the number of building keys being duplicated and distributed, and to warn those possessing keys of the danger of admitting strangers to the building.

In determining whether the evidence adduced at the trial made out a prima facie case of negligence, we must view it in the light most favorable to the plaintiff, and she is entitled to the benefit of all inferences which could reasonably be drawn therefrom (see, Negri v. Stop & Shop, 65 N.Y.2d 625, 626, 491 N.Y.S.2d 151, 480 N.E.2d 740; Becker v. City of New York, 106 A.D.2d 595, 596-597, 482 N.Y.S.2d 888; see also, Derdiarian v. Felix Contr. Co., 51 N.Y.2d 308, 312, n. 1, 434 N.Y.S.2d 166, 414 N.E.2d 666; Quinlan v. Cecchini, 41 N.Y.2d 686, 687, 394 N.Y.S.2d 872, 363 N.E.2d 578). Moreover, where, as here, the plaintiff seeks to recover damages for wrongful death, she is held to a lesser degree of proof, and, in determining whether she has made out a prima facie case, she is entitled to every favorable inference which can reasonably be drawn from the evidence (see, Rivenburgh v. Viking Boat Co., 55 N.Y.2d 850, 851-852, 447 N.Y.S.2d 707, 432 N.E.2d 600; Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744). However, where we determine, in view of the trial evidence, that there is simply no valid line of reasoning or rational basis supporting the jury's verdict, we must conclude, as a matter of law, that the verdict is not supported by sufficient evidence (see, Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145; Becker v. City of New York, supra, 106 A.D.2d at pp. 596-597, 482 N.Y.S.2d 888). This is such a case.

In order to prove a prima facie case of negligence, a plaintiff must establish: (1) the existence of a duty on the part of the defendant to the plaintiff, (2) a breach of that duty, and (3) injury suffered by the plaintiff as a result of the breach (Boltax v. Joy Day Camp, 66 N.Y.2d ---, --- N.Y.S.2d ----, --- N.E.2d ---- Solomon v. City of New York, 66 N.Y.2d ---, --- N.Y.S.2d ----, --- N.E.2d ---- Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 333, 441 N.Y.S.2d 644, 424 N.E.2d 531). A person who possesses realty as either an owner or a tenant (Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 519, 429 N.Y.S.2d 606, 407 N.E.2d 451) is under a duty to exercise reasonable care under the circumstances to maintain the property in a safe condition (Kush v. City of Buffalo, 59 N.Y.2d 26, 29-30, 462 N.Y.S.2d 831, 449 N.E.2d 725; Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868). That duty includes an obligation to take minimal precautions to protect members of the public from the reasonably foreseeable criminal acts of third persons (Nallan v. Helmsley-Spear, Inc., supra, 50 N.Y.2d at p. 519, 429 N.Y.S.2d 606, 407 N.E.2d 451; see also, Miller v. State of New York, 62 N.Y.2d 506, 513, 478 N.Y.S.2d 829, 467 N.E.2d 493; Kush v. City of Buffalo, supra, 59 N.Y.2d at p. 33, 462 N.Y.S.2d 831, 449 N.E.2d 725).

However, the possessor of realty is not an insurer of the safety of those who enter upon such realty, and, in order to establish the existence of a duty on his part to take minimal protective measures, it must be shown "that he either knows or has reason to know from past experience 'that there is a likelihood of conduct on the part of third persons * * * which is likely to endanger the safety of the visitor' " (Nallan v....