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December 13, 1990


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 grounds.

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 so.

Charles Anderson, an employee of the United States Postal Service, had delivered mail to the building since February 1985. Access to the building by post office personnel is gained either by use of a key or the intercom-buzzer system that operates between each apartment and the lobby. Anderson regularly entered the building by using a key provided to the Postal Service. On July 21, 1987, he entered the building with his key and delivered the mail. As he was exiting the lobby area, Rodriguez and Deliu entered the building by going in the open door as he was coming out with his mail cart. According to Deliu, they had never discussed the regular arrival and departure of the postal carrier as a means of gaining access to the building but had assumed that Mrs. Kazanoff would let them in.

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 Road ...

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