Wright v. New York City Housing Authority

• Decision Date: 23 March 1995
• Citation: 208 A.D.2d 327,624 N.Y.S.2d 144
• Parties: Alice WRIGHT, as administratrix of the goods, chattels and credits, which were of Renita Yolanda Wright, deceased, Plaintiff-Respondent, v. The NEW YORK CITY HOUSING AUTHORITY, Defendant-Appellant, and The City of New York, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 144

624 N.Y.S.2d 144

208 A.D.2d 327

Alice WRIGHT, as administratrix of the goods, chattels and credits, which were of Renita Yolanda Wright deceased, Plaintiff-Respondent, v. The NEW YORK CITY HOUSING AUTHORITY, Defendant-Appellant and The City of New York, Defendant.

Supreme Court, Appellate Division First Department.

March 23, 1995.

Richard E. Lerner, of counsel, New York City (Anthony J. Mercorella and Harry P. Brett, on the brief, Wilson, Elser, Moskowitz, Edelman & Dicker, attorneys), for defendant-appellant.

Nathan Belofsky, of counsel, Brooklyn (Headley & Zeitlin, attorneys), for plaintiff-respondent.

Before SULLIVAN, J.P., and ROSENBERGER, NARDELLI and WILLIAMS, JJ.

SULLIVAN, Justice Presiding

In the early morning hours of February 15, 1985, twenty-year-old Renita Wright was raped and strangled to death. Her body was found later that day at the door leading to the roof of 1357 Washington Avenue, a twenty-floor building in a Bronx housing project owned and operated by the New York City Housing Authority. The deceased, who had resided with her mother, the administratrix of her estate and plaintiff herein, on the eleventh floor of the building, had gone out with a female companion earlier that evening, at approximately 8:15 p.m. She never returned to the apartment. In this action, plaintiff alleges that the Housing Authority failed to meet its duty of care with regard to the maintenance, inspection and repair of the building's elevators, door locks and stairwells and that this failure, viewed against a backdrop of prior violent criminal activity at the premises, was a proximate cause of the deceased's rape and murder.

The matter is before us on the Housing Authority's appeal from the denial of its motion for summary judgment dismissing the complaint. The following facts emerge from the supporting and opposing affidavits submitted on the motion. The building in question had a main and side entrance. The main entrance had neither a functioning locking nor intercommunication system for several years. According to plaintiff, the stairwells were unlit and almost always dark and, for at least several months prior to the murder, both of the building's elevators were operating in a defective manner. They would usually stop at only the 17th and 20th floors, giving tenants the option of walking up the stairs from the lobby, taking the elevator to the 17th or 20th floor and walking up or down the stairway, as the case may be, to their destination or attempting to stop the elevator at their floor by using the emergency controls, a method fraught with danger. The deceased's practice was to take the elevator to the 17th or 20th floor and walk down to her family's 11th floor apartment. According to the Housing Authority, the front door lock had been repeatedly broken and the hallway and stairway light bulbs stolen by the tenants or vandals.

The building in question as well as the other buildings in the project had a history of criminal activity, often violent, including at least four rapes, a shooting and an incident where a woman was thrown off the roof. According to plaintiff, the building's stairways and roof were also a haven for drug abusers and dealers.

On the night in question, the deceased's mother and brother heard a scream which seemed to be coming from the stairwell outside their apartment. The deceased's mother was sufficiently concerned to send her son into the stairway to check on the safety of a visitor who had just left the apartment. The son did not see anyone in the stairway. Five minutes after the scream, the deceased's boyfriend came to the apartment door asking for her. The next day, while searching for his sister, the deceased's brother observed coins and tokens lying in the stairwell outside the apartment.

In opposition to the motion, plaintiff submitted the affidavit of a security consultant who, based on a visit to the building more than eight and one-half years after the incident and a review of the facts made available to him, stated, "with a reasonable degree of certainty," that the perpetrator "almost certainly" gained access to the building through the unlocked front entrance doors and that defective elevators forced the deceased, on the night of her murder, to use dark and unlit stairwells, which afforded a hiding place for the perpetrator, who "almost certainly" initially assaulted the deceased in the stairwell at the 11th floor and subsequently dragged her to the roof. On the basis of these findings, the expert concluded that the murder would not have occurred if the front entrance locks were working, the elevators had been functioning properly and the stairwells properly illuminated. Without any discussion of the Housing Authority's claim that, absent a showing as to how the assailant(s) gained entry into the building, plaintiff could not establish proximate cause as a matter of law as to the defective front entrance door lock, the IAS court denied the motion, finding triable issues as to the foreseeability of the incident. We reverse.

Insofar as plaintiff predicates her claim on a lack of security, based on an allegedly broken entrance door lock, it is incumbent upon her, on the issue of proximate cause, to demonstrate that the assailant was an intruder and not one of the building residents or a guest thereof. (See, Dawson v. New York City Hous. Auth., 203 A.D.2d 55, 610 N.Y.S.2d 28; Kistoo v. City of New York, 195 A.D.2d 403, 600 N.Y.S.2d 693; Pena v. New York City Hous. Auth., 195 A.D.2d 395, 600 N.Y.S.2d 681.) In Dawson, the most recently decided case on this issue, this court, in dismissing the complaint, stated, "[T]he failure to provide locks on outer doors is only pertinent as an alleged proximate cause if there is evidence to support a finding that the assailant was 'an intruder * * * with no right or privilege...