Udoh v. Inwood Gardens, Inc.

• Decision Date: 23 February 2010
• Citation: 897 N.Y.S.2d 12,70 A.D.3d 563
• Parties: Charles UDOH, Plaintiff-Appellant, v. INWOOD GARDENS, INC., et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

897 N.Y.S.2d 12

70 A.D.3d 563

Charles UDOH, Plaintiff-Appellant,

v.INWOOD GARDENS, INC., et al., Defendants-Respondents.

Supreme Court, Appellate Division, First Department, New York.

Feb. 23, 2010.

Charles Udoh, appellant pro se.

Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains (Adam J. Detsky of counsel), for respondents.

MAZZARELLI, J.P., CATTERSON, MOSKOWITZ, MANZANET-DANIELS, JJ.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered September 19, 2008, which, to the extentappealed from, granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, with costs, and the complaint reinstated.

Plaintiff is one of the tenant-shareholders of an apartment on the top floor of the Mitchell-Lama cooperative owned by defendant Inwood Gardens, Inc. and managed by defendant Metro Management Development, Inc. In 2000, plaintiff lived in the apartment with two of his sisters and a co-worker. However, at that time he was the only person with a key to the apartment. The apartment had a terrace, accessible by a door in the living room. When plaintiff moved into the apartment in 1995, he had complained to defendants that the terrace door was defective insofar as it allowed water to seep into the apartment. Over the next five years, he asked defendants to repair the door numerous times.

On January 7, 2000, a Friday, defendants finally sent a contractor to plaintiff's apartment to replace the terrace door. However, the replacement door was the wrong size and did not fit the frame. No proper replacement door could be obtained for several days and the contractor covered the opening to the terrace by placing a plastic sheet over it. Because of the cold weather outside, a representative of defendant Metro, who was present while the contractor worked, advised plaintiff that he should vacate the apartment until the contractor replaced the door. Plaintiff accepted this advice and found shelter elsewhere.

On January 10, 2000, plaintiff returned to the apartment. As he stepped off the elevator, he noticed that the front door to the apartment, which he had locked when he left the previous Friday, was ajar. When he entered the apartment, he found that it was in a state of disarray. Upon further investigation, he discovered that the apartment had been ransacked and that many of his possessions had been stolen. Plaintiff commenced this action to recover the value of the pilfered goods. He maintains that defendants' failure to adequately secure the opening from the terrace into the apartment permitted a burglar to gain access to the apartment.

Defendants moved for summary judgment. They argued that plaintiff could not establish that they were, or should have been, aware of a likelihood that his apartment would be burglarized. Further, they contended that plaintiff would not be able to prove at trial that the intruders entered the apartment through the terrace. This was based on plaintiff's testimony at his deposition that he was not certain how the intruders entered the building or the apartment, and that he did not know how somebody could have gained access to the terrace in the first place. As analternative to summary judgment, defendants sought dismissal of the complaint based on plaintiff's alleged failure to respond to discovery demands, or an order of preclusion.

In opposition, plaintiff contended that defendants had failed to provide him with many of the documents he had demanded from them in discovery. In support of his position that security at the building was generally poor, he submitted memoranda to shareholders alerting them to various thefts and muggings in the building, as well as board meeting minutes memorializing discussion of safety issues. However, these documents post-dated the incident at issue by several years.

Supreme Court granted the motion and dismissed the complaint. It held:

"[T]here is no evidence that criminal activity was foreseeable, that defendants

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