Smith v. ABC Realty Co.

• Decision Date: 04 June 1971
• Citation: 66 Misc.2d 276,322 N.Y.S.2d 207
• Parties: Janet SMITH, * Plaintiff, v. ABC REALTY CO., * Defendant.
• Court: New York City Court

Page 207

322 N.Y.S.2d 207

66 Misc.2d 276

Janet SMITH, ^* Plaintiff, v. ABC REALTY CO., * Defendant.

Civil Court of City of New York, Trial Term, Part 20.

June 4, 1971.

MARTIN B. STECHER, Judge.

At about 5:00 o'clock of the morning of June 20, 1969, the plaintiff, asleep in the bedroom of her 'East Village' apartment, was awakened by an unidentified intruder who raped her at knife point. She seeks damages from her landlord as compensation for this assault.

Plaintiff was the sole witness to testify in this case tried without a jury. She testified--and I find--that she lived on the top floor of a five-story walk-up multiple dwelling. The area is a known high-crime area and the building itself was visited by police about a half dozen times during the preceding two years, investigating assaults, burglaries, robbery and narcotics use. The corridors, stairs and roof of the building were regularly habituated by non-resident drug addicts who ministered to their cravings on these premises. From the roof, a fire escape led to the ground, the plaintiff's bedroom window being at the first platform below the roof.

Two weeks prior to the incident, a piece of glass, about three inches by six inches was cut from the bedroom window adjacent to the window latch. (The plaintiff did not explain how this came to be. The defendant's memorandum of law, however, concedes that 'a window of her apartment had been broken and the apartment entered by an unknown party approximately two weeks prior to the occurrence, giving rise to the cause of action herein.') The plaintiff made numerous but fruitless demands on the resident superintendent for repair of the window.

On the night of June 19th, she locked the window and went to sleep. From the evidence, it is reasonable to conclude that the rapist reached in through the broken glass, opened the window and entered through it.

Section 78 of the Multiple Dwelling Law required the defendant to keep this building 'and every part thereof' in good repair. This window was such a part. (Weiss v. Wallach, 256 App.Div. 354, 10 N.Y.S.2d 69, rehearing denied 256 App.Div. 1059, 11 N.Y.S.2d 839). The defendant had notice of the defect in sufficient time to make the repair and its failure to do so was negligent. Was this neglect, however, a proximate cause of plaintiff's injury? Was the rape a consequence reasonably to be foreseen?

On the facts of this case--the location of the apartment in the building, the area in which the building was situated, the unobstructed use of the corridors and roof by unauthorized drug users, the number of other crimes committed there, and the recent forced entry into the plaintiff's apartment through this very window--it must be held that a reasonable person in the landlord's situation should have anticipated that the opening in the fire escape window was an invitation to a criminal entry into the plaintiff's apartment. It is not necessary that the crime of rape have been anticipated. Any violent crime may be expected to accompany a burglary (Penal Law Sec. 140.00 et seq.). In this case, it did.

In seeking to avoid a conclusion of proximate causation, the defendant relies heavily on Horney v. World Island Estates, Inc., 20 A.D.2d 849, 247 N.Y.S.2d 1002, aff'd 15 N.Y.2d 564, 254 N.Y.S.2d 537, 203 N.E.2d 218 in which a complaint, alleging an entry made possible through the design of the structure, was dismissed. The Horney case is not controlling, for there the defendant breached no duty owed the plaintiff. Here, a duty--repair of the window--was breached.

Defendant asserts, citing Saugerties Bank v. Delaware & Hudson Co., 236 N.Y. 425, 141 N.E. 904 that one is not obliged to anticipate the commission of a crime; that the criminal is an intervening cause. As pointed out, however, by Judge Steuer in his dissent in Bolsenbroek v. Tully & Di Napoli, 12 A.D.2d 376, 380, 212 N.Y.S.2d 323, 327: 'The problem of intervening cause does not arise in this case. Where the negligence charged is the failure to provide against danger from an outside source, by definition the effect of that outside source is not an intervention. Many familiar examples will occur. The failure to take proper measures in regard to fire prevention is not excused by...