Rios v. Jackson Associates, 1

• Decision Date: 15 March 1999
• Docket Number: No. 2,No. 1,1,2
• Citation: 686 N.Y.S.2d 800,259 A.D.2d 608
• Parties: 1999 N.Y. Slip Op. 2283 Hector Rene RIOS, respondent, v. JACKSON ASSOCIATES, et al., appellants. (Action) Jose Zuniga, respondent, v. Jackson Associates, et al., appellants. (Action)
• Court: New York Supreme Court — Appellate Division

Page 800

686 N.Y.S.2d 800

1999 N.Y. Slip Op. 2283

Hector Rene RIOS, respondent, v. JACKSON ASSOCIATES, et al., appellants. (Action No. 1)

Jose Zuniga, respondent, v. Jackson Associates, et al., appellants. (Action No. 2)

Supreme Court, Appellate Division Second Department.

March 15, 1999.

Eustace & Furey, Uniondale, N.Y. (John W. Quinn of counsel), for appellants Jackson Associates, Grenadier Realty Corp., Robert Korn, and Joseph Moskow.

Fiedelman & McGaw, Jericho, N.Y. (William D. Buckley of counsel), for appellant Michael Casale Investigations, Ltd.

Keith A. Lavallee, Freeport, N.Y. (Ronald Maggiore of counsel), for respondent Hector Rene Rios.

Mandler & Sieger, LLP, Westbury, N.Y. (Peter A. Mandler of counsel), for respondent Jose Zuniga.

FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN and LEO F. McGINITY, JJ.

MEMORANDUM BY THE COURT.

In two related actions to recover damages for personal injuries, which were joined for trial, the defendants Jackson Associates, Grenadier Realty Corp., Robert Korn, and Joseph Moskow, and the defendant Michael Casale Investigations, Ltd., separately appeal from an order of the Supreme Court, Nassau County (Lockman, J.), entered October 6, 1997, which denied their respective motions for summary judgment dismissing the complaints and all cross claims insofar as asserted against them.

ORDERED that the order is modified by deleting the provision thereof denying the motion of the defendant Michael Casale Investigations, Ltd., for summary judgment dismissing the complaints and all cross claims insofar as asserted against it, and substituting therefor a provision granting that motion; as so modified, the order is affirmed, without costs or disbursements, the complaints and all cross claims are dismissed insofar as asserted against the defendant Michael Casale Investigations, Ltd., and the actions against the remaining defendants are severed.

At about 12:30 A.M. on May 14, 1994, the plaintiffs were conversing in the lobby of their apartment building, which was owned by the defendant Jackson Associates, of which the defendants Robert Korn and Joseph Moskow are partners, and managed by the defendant Grenadier Realty Corp. (hereinafter collectively the Jackson defendants). The defendant Michael Casale Investigations, Ltd. (hereinafter MCI) is a security company which had been hired to safeguard the building. The plaintiffs in both actions averred that as they talked they observed three unknown men force open the main door and enter the lobby, wielding a bat and a rock. The three men then beat the plaintiffs and injured them seriously.

Landlords have a "common-law duty to take minimal precautions to protect tenants from foreseeable harm", including the harm caused by a third party's criminal conduct on the premises (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; Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606, 407 N.E.2d 451). However, to recover damages from a landlord for the criminal conduct of a third party, the tenant must demonstrate that the criminal incident was foreseeable, by showing, for example that the landlord was on notice of recent crimes in the building (see, Francis v. Ocean Village Apartments, 222 A.D.2d 551, 635 N.Y.S.2d 262; Iannelli v. Powers, 114 A.D.2d 157, 161-164, 498 N.Y.S.2d 377). In addition, a plaintiff must prove that the landlord's negligent conduct was a proximate cause of his injury, such as by presenting evidence that his assailant was an intruder who had gained access to the premises through a negligently-maintained entrance (see, Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 684 N.Y.S.2d 139, 706 N.E.2d 1163; Miller v. State of New York, 62 N.Y.2d 506, 513-514, 478 N.Y.S.2d 829, 467 N.E.2d 493). Thus, a landlord's motion for summary judgment may be defeated by raising triable questions of fact regarding the issues of foreseeability and proximate causation (see, Burgos v. Aqueduct Realty Corp., supra; see also, Price v. New York City Hous. Auth., 92 N.Y.2d 553).

The plaintiffs demonstrated the existence of triable issues of fact with respect...