Novikova v. Greenbriar Owners Corp.
| Decision Date | 23 August 1999 |
| Citation | 258 AD2d 149,694 N.Y.S.2d 445 |
| Parties | Galina NOVIKOVA, etc., et al., respondents, v. GREENBRIAR OWNERS CORP., et al., appellants. |
| Court | New York Supreme Court — Appellate Division |
Sedgwick, Detert, Moran & Arnold, New York, N.Y. (Kenneth N. Rashbaum and Howard R. Cohen of counsel), for appellants.
Worby, Borowick & Groner, LLP, White Plains, N.Y. (Richard Vecchio and Alicia Sandberg of counsel), for respondents.
DAVID S. RITTER, J.P., FRED T. SANTUCCI, DANIEL F. LUCIANO and HOWARD MILLER, JJ.
RITTER, J.P.
The issue presented is whether the defendants' failure to have provided a 24-hour-a-day doorman at a residential apartment building constituted a breach of their duty to provide minimal precautions against the foreseeable criminal acts of third parties. We find that it did not.
This appeal concerns the tragic shooting death of Arkady Novikova while he and his wife were visiting two friends who were tenants in a condominium apartment building owned and/or operated by the defendants. The decedent, his wife, and their friends returned to the building one night well after midnight, at approximately 2:30 A.M. The decedent's wife and the two friends entered the vestibule of the building and were in the process of opening the inner locked doors when a man appeared from behind the adjacent bushes and attempted to steal the wife's purse. The decedent attempted to ward off his wife's attacker, but was shot and killed during the ensuing struggle.
Thereafter, the plaintiffs, as representatives of the decedent's estate, commenced this action seeking damages arising from negligence. The plaintiffs alleged that the defendants breached their duty to take minimal precautions against the foreseeable criminal acts of third parties because the defendants failed to provide a 24-hour-a-day doorman. After issue was joined and various disclosure completed, the defendants moved for summary judgment dismissing the complaint, arguing that the security measures provided were sufficient to discharge any duty owed the decedent. In the order appealed from, the Supreme Court denied the defendants' motion, finding that triable issues of fact existed. We now reverse the order and grant summary judgment to the defendants.
Under the common law, the owner or possessor of property has the general duty to take reasonable measures to maintain his or her property in a reasonably safe condition (see, Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606, 407 N.E.2d 451; Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868). In Nallan v. Helmsley-Spear, Inc. (supra), the Court of Appeals first addressed the duty of an owner or possessor of property to take precautions against the criminal acts of third parties. The Nallan court, citing to the Restatement, Torts 2d, § 344, which defined the liability of the owner of business premises when there is a foreseeable danger of harm to visitors from the criminal acts of third parties, held that a "natural corollary" of the above-stated general common- law duty to maintain property in a reasonably safe condition was the "obligation to take reasonable precautionary measures to minimize the risk [of criminal acts] and make the premises safe for the visiting public" (Nallan v. Helmsley-Spear, Inc., supra, at 520, 429 N.Y.S.2d 606, 407 N.E.2d 451). In Miller v. State of New York, 62 N.Y.2d 506, 478 N.Y.S.2d 829, 467 N.E.2d 493, the court distilled the holding of Nallan as imposing on the owner or possessor of land "a duty to maintain minimal security measures, related to a specific building itself, in the face of foreseeable criminal intrusion upon tenants" (Miller v. State of New York, supra, at 513, 478 N.Y.S.2d 829, 467 N.E.2d 493). In so holding, the Miller court cited several lower court cases concerning rudimentary security measures such as the provision of proper illumination (Loeser v. Nathan Hale Gardens, 73 A.D.2d 187, 425 N.Y.S.2d 104) and working doors and locks (Sherman v. Concourse Realty Corp., 47 A.D.2d 134, 365 N.Y.S.2d 239; Skaria v. State of New York, 110 Misc.2d 711, 442 N.Y.S.2d 838). In recent cases, the Court of Appeals formulated the relevant standard as being the " 'common-law duty to take minimal precautions to protect tenants from foreseeable harm', including a third party's foreseeable criminal conduct" (Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 548, 684 N.Y.S.2d 139, 706 N.E.2d 1163, quoting Jacqueline S. v. City of New York, 81 N.Y.2d 288, 293-294, 598 N.Y.S.2d 160, 614 N.E.2d 723). The duty extends, as here, to a guest of a tenant (see, Waters v. New York City Hous. Auth., 69 N.Y.2d 225, 513 N.Y.S.2d 356, 505 N.E.2d 922).
In support of their motion for summary judgment, the defendants noted that both the outside of the building and entrance vestibule were lighted, that the entrance was equipped with an inner door lock, an intercom and buzzer system and a surveillance camera, and that there was a doorman on duty from 4:00 P.M. to 12:00 A.M. daily. These undisputed facts were sufficient to demonstrate a prima facie case that the defendants satisfied their duty to provide minimal precautions against the foreseeable criminal acts of third parties and to warrant judgment to the defendants as a matter of law (see, e.g., Roberts v. Jam Realty Co., --- A.D.2d ----, 688 N.Y.S.2d 69; Tarter v. Schildkraut, 151 A.D.2d 414, 542 N.Y.S.2d 626).
In opposition to the defendants' prima facie case, the plaintiffs proffered the affidavit of a purported expert in premises security, Dennis McCormack, a former police officer. McCormack opined that, based on, inter alia, police reports of 21 crimes within the six months preceding the crime at issue that occurred in and in the "immediate vicinity" of the subject building, the presence of a 24-hour-a-day doorman would have been a "reasonable security measure". We hold that McCormack's affidavit and the appended police reports were insufficient to raise a triable issue of fact as to whether the defendants breached their duty to provide minimal precautions against the foreseeable criminal acts of third parties.
As a threshold issue, the plaintiffs presented no evidence that the defendants knew or should have known of the criminal conduct set forth in the reports, one prerequisite to establishing foreseeability (see, Francis v. Ocean Vil. Apts., 222 A.D.2d 551, 635 N.Y.S.2d 262). Indeed, the plaintiffs did not identify the dimensions of the area they describe as being in the "immediate vicinity" of the subject premises, or even whether it included one or more blocks. To the contrary, for example, the Jacqueline S. case (supra) concerned an identified location, namely multiple buildings in a single unified, albeit expansive, housing project.
In any event, even if notice had been established, the plaintiffs failed to raise a triable issue of fact that the crime at issue, or one of similar nature, was foreseeable. The Court of Appeals recently held that there is no requirement "that the past experience relied on to establish foreseeability be of criminal activity at the exact location where the plaintiff was harmed or that it be of the same type of criminal conduct to which plaintiff was subjected", or that "the operative proof must be limited to crimes actually occurring in the specific building where the attack took place" (Jacqueline S. v. City of New York, supra, at 294, 598 N.Y.S.2d 160, 614 N.E.2d 723). However, this does not mean that the criminal activity relied upon by the plaintiffs to support their claim of foreseeability need not be relevant to predicting the crime in question. As the endless supply of crime statistics attest, crime is a fact of life and is foreseeable (see, e.g., Jacqueline S. v. City of New York, supra, at 299, 598 N.Y.S.2d 160, 614 N.E.2d 723 [Bellacosa, J., dissenting]; Waters v. New York City Hous. Auth., 69 N.Y.2d 225, 513 N.Y.S.2d 356, 505 N.E.2d 922, supra). Criminal activity is more frequent in our urban centers, although there are marked differences between neighborhoods (see, New York State Division of Criminal Justice Services, 1997 Crime and Justice Annual Report). However, the courts have repeatedly held that ambient neighborhood crime alone is insufficient to establish foreseeability (see, Evans v. 141 Condominium Corp., 258 A.D.2d 293, 685 N.Y.S.2d 191; Todorovich v. Columbia Univ., 245 A.D.2d 45, 665 N.Y.S.2d 77; Levine v. Fifth Hous. Co., 242 A.D.2d 564, 662 N.Y.S.2d 95; Mendez v. 441 Ocean Ave. Assocs., 234 A.D.2d 524, 651 N.Y.S.2d 175; Rozhik v. 1600 Ocean Parkway Assocs., 208 A.D.2d 913, 617 N.Y.S.2d 535). Rather, to establish foreseeability, the criminal conduct at issue must be shown to be reasonably predictable based on the prior...
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