The opinion of the court was delivered by: Sifton, District Judge.
This wrongful death suit is before the Court on motions for
summary judgment by four of the defendants. Plaintiff, Irving
Kazanoff, brings this tort action individually and as executor
of the estate of his wife, Shelley Kazanoff, who was murdered
in their apartment.
The second amended complaint alleges that defendants Daniel
Rodriguez and William Deliu murdered Shelley Kazanoff in the
course of robbing her and wrongfully caused her pain, injury,
and death; that the United States ("the government")
negligently caused her death because a U.S. Postal Service
employee permitted Rodriguez and Deliu to enter the building as
he was leaving; and that the following three defendants were
negligent in failing to provide necessary security for the
tenants: Just Management Corporation ("JMC"), the managing
agent of the building; 100-10 67th Road Condominium Association
("Association"), the homeowners' association at the building;
and Preferred 100-10 67th Road Condominium Corporation
("Preferred"), the owner of the unsold apartment units in the
building, including plaintiff's. Each of these three defendants
has asserted cross-claims against all of the other defendants
in the case. Motions for summary judgment are now brought by
all defendants, except the two individuals, on a variety of
The following facts are derived from depositions, documentary
evidence, and the parties' 3(g) statements. They are not in
dispute except where indicated.
On July 21, 1987, plaintiff and his wife lived in an
apartment they rented at 100-10 67th Road in Forest Hills, New
York. Plaintiff had resided in this residential sixty-four unit
apartment building for 26 years, and with his decedent since
1980. The building has never employed a doorman.
Defendants Daniel Rodriguez and William Deliu agreed to rob
Shelley Kazanoff in her apartment at 100-10 67th Road.
According to Deliu, Rodriguez told him that he knew a woman
whose husband owned a chain of fur stores and who had a lot of
money, jewelry, and furs in her apartment. Shelley Kazanoff had
known Rodriguez' mother for many years and had met him years
earlier. Deliu states that Rodriguez intended to gain access to
the building by obtaining a business card with Shelley
Kazanoff's name written on it, carrying an attache case, and
dressing in a manner to suggest that his presence at the
building was for the purpose of transacting business with her.
On the morning of July 21, 1987, defendants Rodriguez and
Deliu walked through the outer doorway of the building and
entered the vestibule area at 100-10 67th Road. The vestibule
contains two metal frame, self-closing, buzzer-activated glass
doors leading into the lobby of the building and an intercom
system by means of which tenants can communicate with visitors
and open the locked doors to allow visitors into the building.
Rodriguez and Deliu rang the buzzer in plaintiff's apartment
through the intercom system, but no one answered. According to
Deliu, Rodriguez then attempted to gain access to the lobby of
the building with a plastic credit card but was unable to do
The superintendent of the building, Muhamed Dabovic, claims
that he had told Anderson and his predecessors not to allow
unauthorized persons to enter the building. Anderson does not
recall ever being told that. He states that he did not
recognize defendants Rodriguez and Deliu but thought they were
possibly tenants or construction workers.
After entering, defendants Rodriguez and Deliu walked up the
stairs to the Kazanoffs' apartment. According to Deliu, they
rang the doorbell, but no one answered. They rang again after
a couple of minutes. Subsequently, Shelley Kazanoff opened the
door with the chain in place, dressed in a nightgown. Rodriguez
identified himself and told her that he needed to talk to her,
claiming that his mother Elsie had just died and his brother
was in prison. She told them to wait and closed her apartment
door. After dressing, she reappeared five to ten minutes later.
During that time, she made two telephone calls, including one
to Elsie Rodriguez. Then, she stepped into the hallway and
turned around to lock the door with her keys in hand. The
parties dispute whether she left the apartment to talk to
Rodriguez or to go outside, possibly to escape from them. The
locks on the door functioned properly. Rodriguez and Deliu
grabbed her keys from her and forced her into the apartment.
While Deliu rummaged through her bedroom, Rodriguez brutally
killed her. They took various items which they subsequently
sold for $475. Rodriguez was convicted of murder and burglary
in New York State Supreme Court. In a separate trial, Deliu was
acquitted, despite his confession.
Plaintiff returned to the building at approximately 1:00
p.m., using his key to open the locked vestibule door to enter
the lobby. He testified at Deliu's criminal trial that one
cannot get into the building without a key. Both the lock on
the interior set of doors and the buzzer intercom system were
functioning properly on that day.
In the 26 years plaintiff resided in the building, he was
unaware of anyone being assaulted in the building prior to this
incident. The building superintendent testified at his
deposition that he had heard of three other burglaries in the
building not involving forcible entry, but he did not know
whether they occurred before or after the incident involving
plaintiff's wife. Plaintiff also claims that a "homeless" man
had been seen eating and apparently residing in the basement of
the premises on several occasions.
Defendant 100-10 67th Road Condominium Association (the
"Association") owned the building in which plaintiff and his
decedent resided. Defendant Just Management Corp. ("JMC") was
the managing agent of the building since January 1, 1985,
pursuant to a written contract entered into with the
Association. The contract limits JMC's right to perform repairs
or alterations to the building in excess of $1,000 without the
condominium board's approval. Defendant Preferred 100-10 67th