Sherman v. Concourse Realty Corp.

• Decision Date: 10 March 1975
• Citation: 47 A.D.2d 134,365 N.Y.S.2d 239
• Parties: Sol SHERMAN et al., Appellants, v. CONCOURSE REALTY CORPORATION, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 239

365 N.Y.S.2d 239

47 A.D.2d 134

Sol SHERMAN et al., Appellants, v. CONCOURSE REALTY CORPORATION, Respondent.

Supreme Court, Appellate Division, Second Department.

March 10, 1975.

Ivan L. Tantleff, Brooklyn (Benjamin H. Siff and Thomas R. Newman, New York City, of counsel), for appellants.

Harold M. Foster, New York City (William F. McNulty and Anthony J. McNulty, New York City, of counsel), for respondent.

Before HOPKINS, Acting P.J., and LATHAM, CHRIST, BENJAMIN and MUNDER, JJ.

CHRIST, Justice.

In this negligence action the basic issue is whether a landlord's negligent maintenance of residential premises may be the predicate for holding him liable in tort for personal injuries inflicted upon a tenant by a criminal intruder in a common area of the premises.

Plaintiff Sol Sherman, the tenant, sustained personal injuries when he was assaulted and robbed by an unidentified assailant in the lobby of the multiple dwelling owned by the defendant landlord. For a week prior to this incident the lobby entrance door was in defective condition for the reason, as alleged in the complaint, that the landlord had caused the door lock (actually the cylinder) to be removed, apparently for repair, thus leaving 'the plaintiff and others * * * exposed' to peril. The landlord's removal of the cylinder from the lobby entrance door rendered inoperative the building's security buzzer system which had been installed as one of the conditions for a rent increase. The tenant's testimony, if credited by the jury, established that the assailant entered the building through the lobby entrance door.

At the conclusion of the plaintiffs' case the trial court stated that the testimony established the landlord's negligence in maintenance of the building's security buzzer system and that there had been many instances of crime committed in the building and the surrounding area, but nevertheless dismissed the complaint on the ground that the evidence presented was insufficient to establish that the landlord's negligence was the proximate cause of the tenant's injury. We disagree. The judgment should be reversed and a new trial granted.

The defendant, Concourse Realty Corporation, is the owner of 1555 Grand Concourse, a six-story multiple dwelling, housing approximately 200 tenants, in which the injured plaintiff resides with his wife. The landlord stipulated during the trial that prior to the assault and robbery of the tenant the New York City Rent and Rehabilitation Administration had granted permission to increase rents in the building, conditional in part, upon the landlord's installation of a protective buzzer system. The system consists of locks and buzzers controlling the doors leading to the common hallways. It was stipulated that this tenant's rent was increased to pay for this protection.

To establish that the landlord had notice of prior criminal activity in the building the tenant introduced into evidence a signed notice which the landlord had posted over the mailboxes. It provided in pertinent part:

'Notice to all tenants: There have been several robberies in this building in recent weeks due to strangers and thieves getting in through the front door. It is imperative that all tenants use the intercom system to learn who is ringing their bell before they ring back. This system was put in for your protection.

Also, when you enter the building using your own key at the lobby door, if someone or a stranger attempts to enter at the same time, please report it to the superintendent at once because a thief can gain access to the building.'

The uncontroverted evidence established that for at least a week prior to the incident the lock on the lobby entrance door was inoperative, thus permitting unimpeded entry into the building. The landlord had actual notice of the defective condition, as the allegations of the complaint, which were not challenged or disproven on the trial, alleged that the landlord had caused the cylinder to be removed. The tenant testified that the assault and robbery occurred on September 5, 1969 at about 10:15 P.M. in the building lobby. Specifically, he described the incident as follows:

'I pushed the door (referring to the lobby entrance door with the defective lock) open. I walked in. The door closed behind me. I continued walking. Then the door opened and closed behind me. I reached the elevator, pushed the button, and in a split second, before I knew it, somebody came up behind me and knocked me down and fractured my hip and grabbed me from behind' (emphasis and bracketed matter supplied).

At the conclusion of the tenant's case the trial court dismissed the complaint, opining that the evidence presented was equally consistent with the view that the assault and robbery could have been committed by someone other than an intruder, thus eliminating the inoperative lobby entrance door lock as a factor in the chain of causation.

On this appeal the contention raised on behalf of the tenant is that the evidence was sufficient to permit the jury to conclude that the assailant was an intruder who entered through the lobby door containing the defective lock. Counsel for the landlord counters this argument by contending, in his brief, that assuming, Arguendo, 'that the proof * * * was sufficient to establish that the unidentified assailant gained access * * * through the lobby door * * * the claimed negligence of the * * * landlord in failing to repair the broken lock on the lobby door was not a proximate cause of the assault and robbery' of the tenant. This last contention is the crux of the case.

As to the tenant's contention, it is clear that the tenant's testimony, if credited by the jury, constituted sufficient circumstantial evidence from which the jury could reasonably infer that the assailant was an intruder who entered the lobby by pushing open the lockless lobby entrance door. The tenant presented no direct evidence that the assailant entered through the lobby entrance door, but his testimony tended to establish that after he entered he heard the lobby door open and close behind him and that a 'split second' later he was assaulted. It is basic that circumstantial evidence consists of proof of collateral facts from which the fact or facts in issue may indirectly be established (see, generally, Richardson, Evidence (10th ed.), § 145; 29 Am.Jur.2d, Evidence, § 264). In Spett v. President Monroe Bldg. & Mfg. Corp., 19 N.Y.2d 203, 205, 278 N.E.2d 826, 828, 225 N.E.2d 527, 528, the Court of Appeals aptly stated: "Circumstantial evidence is sufficient if it supports the inference of causation or of negligence even though it does not negative the existence of Remote possibilities that the injury was not caused by the defendant or that the defendant was not negligent" (emphasis in original). In the instant case the tenant's testimony amply established the threshold of proof to make resolution of the manner of the assailant's entry a jury question.

Of greater weight is the landlord's contention, i.e., that the landlord's negligence in failing to repair the defective lobby entrance door lock could not be viewed as the proximate cause of the assault and robbery committed upon the tenant. In support of this position counsel for the landlord cites Horney v. World Is. Estates, 20 A.D.2d 849, 247 N.Y.S.2d 1002, affd. 15 N.Y.2d 564, 254 N.Y.S.2d 537, 203 N.E.2d 218; Smith v. ABC Realty Co., 71 Misc.2d 384, 336 N.Y.S.2d 104, revg. 66 Misc.2d 276, 322 N.Y.S.2d 207; Hall v. Fraknoi, 69 Misc.2d 470, 330 N.Y.S.2d 637; Tirado v. Lubarsky, 49 Misc.2d 543, 268 N.Y.S.2d 54, affd. 52 Misc.2d 527, 276 N.Y.S.2d 1281. A review of the cases is helpful to a consideration of the problem presented.

In Horney v. World Is. Estates (supra), the plaintiff tenants were injured by an unidentified intruder who had entered their apartment in the defendant landlord's multiple dwelling. The plaintiffs sought recovery against the landlord, apparently alleging that the landlord's negligence in maintaining a concrete base (the housing part of a chimney pipe) under their living room window was a substantial factor contributing to the entry of the assailant. The Court of Appeals affirmed, without opinion, the First Department's affirmance of a dismissal of the complaint and the Reporter's syllabus indicates agreement with a finding of the trial court that 'the record was barren of any proof to indicate that defendant could have reasonably foreseen the commission of said crimes and should have taken precautionary measures of prevention' (Supra, 15 N.Y.2d 565, 254 N.Y.S.2d 537, 203 N.E.2d 218).

In Tirado v. Lubarsky, 49 Misc.2d 543, 268 N.Y.S.2d 54, affd. 52 Misc.2d 527, 276 N.Y.S.2d 1281, Supra) a tenant brought suit against the landlord, Inter alia, for personal injuries sustained when his ground floor apartment was burglarized and he was assaulted. The tenant alleged that he had notified the landlord that the lock on his front door was...