Melville v. New York City Housing Authority
| Decision Date | 21 August 1997 |
| Citation | 661 N.Y.S.2d 632,242 A.D.2d 244 |
| Parties | , 1997 N.Y. Slip Op. 7153 Donald MELVILLE, Plaintiff-Respondent, v. The NEW YORK CITY HOUSING AUTHORITY, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
David M. Schuller, for plaintiff-respondent.
Howard R. Cohen, for defendant-appellant.
Before ELLERIN, J.P., and WALLACH, NARDELLI, RUBIN and MAZZARELLI, JJ.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered December 9, 1996, which denied defendant's motion for summary judgment, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.
The complaint alleges that plaintiff, a resident of 1725 Bruckner Boulevard for over ten years, was assaulted and robbed as he left the elevator and entered the lobby of the building. Plaintiff contends that his assailant stepped through the door leading from the vestibule to the lobby, demanded the contents of his pockets and beat him severely with a gun, his fists and his feet before fleeing.
Access to the building is gained through a vestibule consisting of an unlocked door from the street followed by a second door secured by a lock and intercom system. Plaintiff contends that neither the lock on the lobby door nor the intercom was functioning at the time of the assault or for some time prior to the incident. Plaintiff admits that he was aware of the malfunctioning security devices but did not notify defendant and does not know if any member of his family or any other resident of the building ever complained to the landlord.
It is plaintiff's theory that his assailant gained access to the lobby because of the broken door lock. Although plaintiff claims to have seen his assailant enter through the lobby door, the evidence does not establish whether the assailant gained access due to the inoperative security measures, whether he was a tenant who entered with a key or whether he was an invitee, admitted by another tenant.
Plaintiff gave conflicting testimony concerning whether or not he was able to identify his attacker. At a hearing conducted pursuant to General Municipal Law § 50-h, plaintiff stated that he identified the assailant from pictures he was shown while recovering in the hospital and that he later learned that the assailant lived across the street in the same housing project. However, at an examination before trial 11 months later, plaintiff effectively recanted his prior testimony by stating that he did not identify his assailant, either from photographs or from a lineup. A New York City Housing Detective was also unable to state whether or not the assailant had been apprehended. Neither plaintiff nor the detective was able to establish that the assailant was an intruder.
As this Court stated in Dawson v. New York City Hous. Auth., 203 A.D.2d 55, 610 N.Y.S.2d 28, the absence of "locks on outer doors is only pertinent as an alleged proximate cause if there is evidence to support a finding that the assailant was 'an intruder * * * with no right or privilege to...
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